Bross v. the Cairo

• Decision Date: 31 August 1881
• Citation: 9 Ill.App. 363,9 Bradw. 363
• Parties: FREDOLINE BROSSv.THE CAIRO AND VINCENNES RAILROAD COMPANY, use, etc.
• Court: United States Appellate Court of Illinois

9 Ill.App. 363

9 Bradw. 363

FREDOLINE BROSS

v.THE CAIRO AND VINCENNES RAILROAD COMPANY, use, etc.

Appellate Court of Illinois, Fourth District.

August Term, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Alexander county; the Hon. DAVID J. BAKER, Judge, presiding. Opinion filed October 6, 1881.

Messrs. LINEGAR & LANSDEN, for appellant; that parol evidence of the contemporaneous agreement was admissible, cited Shugart v. Moore, 78 Pa. St. 469; Pike v. Fay, 101 Mass. 134; Pierce v. Woodward, 6 Pick. 206; Mann v. Smyser, 76 Ill. 365; Ruff v. Jarrett, 94 Ill. 475; Barclay v. Wainwright, 86 Pa. St. 191; Van Brunt v. Day, 81 N. Y. 251; Weaver v. Fletcher, 27 Ark. 510; Basshor v. Forbes, 36 Md. 154.

Upon the right to recoup damages: Edwards v. Todd, 1 Scam. 462; Nichols v. Ruckels, 3 Scam. 298; Kaskaskia Bridge Co. v. Shannon, 1 Gilm. 15; Sanger v. Fincher, 27 Ill. 346.

Damages may be recouped under the general issue: Babcock v. Trice, 18 Ill. 420; Murray v. Carlin, 67 Ill. 286; Cook v. Preble, 80 Ill. 381.

Recoupment has always received favorable consideration from the courts: Stow v. Yarwood, 14 Ill. 424; Streeter v. Streeter, 43 Ill. 155; Peck v. Brewer, 48 Ill. 54.

Messrs. GREEN & GILBERT, for appellee; relied upon C. & V. R. R. Co. v. Parker, 84 Ill. 613.

WALL, J.

This was an action of assumpsit by appellee against appellant upon an instrument in writing in the words and figures following:

“CAIRO, ILL., Dec. 18, 1867.

For value received, I promise to pay to the order of the Cairo and Vincennes Railroad Company the sum of two hundred dollars; this note to become due and payable when the track of said railroad shall be laid from Cairo through Pulaski county, and cars shall have run thereon.

F. BROSS.”

The declaration contained two special counts and the common money counts. The first special count set out the said instrument in haec verba, and alleged that the said railroad was laid Cairo through Pulaski county, and that cars had run thereon, from on December 15, 1872. The second special count set out the legal effect of the instrument, and alleged that the track of said road had been laid and cars had run, etc., as stated in the first count, and that the defendant had notice thereof, etc.

The defendant pleaded the general issue, and five other pleas. The plaintiff demurred to the 2nd, 3rd, 5th, and 6th pleas, and replied specially to the fourth plea. The fourth was a plea of want of consideration. To this plea the plaintiff replied that upon the faith of the said instrument in writing, and other donations and subscriptions, the railroad company had expended more than a million of dollars in the construction of its road, etc. The court sustained the demurrer to the 2nd, 3rd, 5th, and 6th pleas, and the defendant stood by the pleas.

It is urged that the court erred in sustaining the demurrer to the 2nd and 3d pleas. The 2nd plea alleged that the defendant was the owner of a large quantity of real estate situate on Commercial Avenue, in Cairo, Illinois, of great value; that the note was given upon the understanding between defendant and the plaintiff that the road should not be built along said avenue, as had been the previous intention; that the defendant had formerly refused to give the note in suit for the reason that he believed the road, if built, would be built along said avenue, and would greatly injure his property, but that when he was informed by said company that said road would not be built along said avenue, and was again requested to give said note, he consented to do so upon said understanding and agreement; that after the making of the said note, which was really but a donation to the company to induce it to build the road, the company proceeded to build the road, and did, in violation of its said agreement and understanding, lay the track along said avenue, and in front of the property of the plaintiff and against his protest and objection, and to his injury.

The third plea set up substantially the same facts as the second; alleged that the property of defendant was damaged by reason of the building of the road, in the sum of fifteen hundred dollars, and offered to set off so much thereof as would cover the amount due on the note. No point is made as to the ruling of the court on the 5th and 6th pleas. On the trial the defendant offered to prove the facts set up in the third plea by way of recoupment under the general issue, but the court declined to hear the proof, and the plaintiff having first introduced the note and proved the completion and operation of the road prior to Jan'y 1, 1873, recovered a judgment for the amount due on the note. It is urged by counsel for appellee--plaintiff below--that the questions arising in this case have been settled by the Supreme Court in the case of the C. & V. R. R. Co. v. Parker, 84 Ill. 613. In that case a note similar to this was involved, and the maker sought to prove that it was given upon the express understanding that the road should be fully built and completed within two years from the date; that such understanding was the sole consideration of the note; that the road was not built within the time fixed, and so the consideration failed. The Supreme Court were of opinion that the defense, if allowed, would amount to an alteration or change of the terms of the note, and applied the familiar rule that parol contemporaneous evidence is not admissible to change the legal force and effect of a written instrument, or to make the contract different from what the writing imports, and therefore disallowed the defense. Upon the question whether the Parker case is fully in point and controls this, so far as the second plea is concerned, the members of the court...