Bonnell v. Wilder

• Decision Date: 31 January 1873
• Citation: 1873 WL 8208,67 Ill. 327
• Parties: DAVID T. BONNELLv.HENRY H. WILDER.
• Court: Illinois Supreme Court

67 Ill. 327

1873 WL 8208 (Ill.)

DAVID T. BONNELL

v.HENRY H. WILDER.

Supreme Court of Illinois.

January Term, 1873.

APPEAL from the Circuit Court of Jersey county; the Hon. CHARLES D. HODGES, Judge, presiding.

Mr. ALBERT G. BURR, and Mr. WILLIAM BROWN, for the appellant.

Messrs. WARREN & POGUE, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action of assumpsit on a promissory note. The pleas were, non-assumpsit, payment and set-off, on which issues were made up. The plaintiff, to prove the issue on his part, introduced the note. To maintain the issues of defendant, he was himself the witness. They being affirmative issues, he was bound to sustain them by a preponderance of evidence. He testified that, before making the note sued on, he held a note on Levi Crane, secured by mortgage on certain personal property--a portable saw-mill, buggy, pair of timber wheels and three yoke of oxen; that he could realize nothing on it; the property was in dispute, and suits were pending both at law and in chancery, involving the title to it; that he had prosecuted the suits until he was out of money, and could do no more. The plaintiff had, at that time, a judgment against him in the Jersey circuit court of over four hundred dollars. He then testified that plaintiff and he entered into an agreement, as follows: He gave plaintiff the Crane note and his title to the mortgaged property for this judgment against him, and plaintiff gave him one hundred dollars worth of goods “to boot,” for which defendant gave the note sued on. He further testified that plaintiff said to him, “give me your note for one hundred dollars, and the first money I get out of the Crane matter shall go to pay the note.” This was agreed to, and the defendant testified he gave the note, on the understanding if plaintiff received that much and interest, it was to apply on the note. This agreement was in writing, drawn up by Mr. Minor, and left with plaintiff. Since it was entered into, he had nothing to do with the Crane matter except as a witness. Plaintiff commenced suit in witness' name, which he attended as a witness. On his cross-examination, he said the Crane note was worthless if the mortgage failed; in the agreement, the money first realized was to apply on the note, and plaintiff was to take his chance for the balance. Nothing was said about payment of expenses. Plaintiff did not recover the mill in the suits, but recovered the balance of the property. The judgment plaintiff held against witness was not entered satisfied, for the reason he was going to remove to Oregon. He admitted receiving the goods to the amount of the note on the day of its date.

This is the defendant's case, under his pleas of payment and set-off, and the whole of his case.

The plaintiff testified, giving his version of the matter. He says he had, and still has, a judgment in the Jersey circuit court against the defendant. Defendant came to him and said he had a mortgage claim against Crane, and desired witness to carry on suits to recover the property, as he was out of funds; said his family were greatly in need of some articles from the store, and if witness would let him have them he could take the mortgage claim, and whatever he could realize on it he should apply on defendant's indebtedness to him; talked of the judgment witness held, and said his only show was for witness to manage the Crane matter and get money to pay himself. They finally made an agreement, which was put in writing; witness did not keep the agreement; supposed it was in the hands of Minor, but on inquiry of him it could not be found. The agreement was, witness was to do the best he could to recover the articles named in the Crane mortgage, and out of whatever was realized, witness should pay the expenses of carrying on the suits, and apply whatever balance he might have to his claims against the defendant, and if there was still a balance left, witness was to retain it for his trouble, but was not to make any charge for his trouble unless he realized it out of the proceeds. At that time, his judgment against the defendant, including interest, was over seven hundred dollars. This note was not to be first paid out of the proceeds, but after meeting expenses, the balance, if any, was to apply on his claims against defendant, without any agreement as to the order of satisfaction. He admits the receipt of one hundred and seventy-six dollars and twenty-five cents, realized on the Crane claim, which is all he ever received. In the proceedings, he said, he has paid out more than three hundred dollars in fees, costs and expenses; paid for law fees alone more than all he realized. There was no provision in the agreement that this note was to be first paid. The note was given for goods passed over the counter to defendant, induced by the condition of defendant's family, as he stated. Had he recovered the mill, there would have been sufficient to satisfy his judgment and pay the note also, but as it was, he did not get enough to pay the expenses incurred in the attempt.

This is all the material evidence in the cause--the one party affirming a fact, and the other denying it. How, then, can it be said the affirming party has maintained his affirmation by a preponderance of testimony? Neither witness is impeached; both are equally credible. What is the jury to do under such circumstances? The answer is plain: look to the circumstances usually attending such transactions, which is a part of their general knowledge, and they must consider them and be governed accordingly.

It is a well established rule in all courts, that a party who makes an affirmative allegation must maintain it by proof; his proof must be superior to that offered by his adversary. Watt v. Kirby, 15 Ill. 200; Union National Bank v. Baldenwick, 45 ib. 375. Where a party affirms the existence of a...