Buckmaster v. Grundy

• Decision Date: 31 December 1846
• Citation: 8 Ill. 626,3 Gilman 626,1846 WL 3899
• Parties: NATHANIEL BUCKMASTERv.WILLIAM GRUNDY et al.
• Court: Illinois Supreme Court

3 Gilman 626

8 Ill. 626

1846 WL 3899 (Ill.)

NATHANIEL BUCKMASTER

v.WILLIAM GRUNDY et al.

Supreme Court of Illinois.

December Term, 1846.

BILL IN CHANCERY, for relief, etc. filed in the Madison circuit court, by the appellant against the appellees, and heard before the Hon. GUSTAVUS P. KOERNER, at the October term, 1846, when a special decree was rendered adjusting the equities of the parties. The complainant in the cause below appealed to this court.

T. FORD and W. MARTIN argued for the appellant.

D. PRICKETT, upon the same side, filed a written argument.

J. GILLESPIE, L. B. PARSONS, JR. and H. W. BILLINGS, for the appellees:

1. The injunction should have been dissolved in the court below, and each party left to his remedy at law, as the complainant elected to make his defence at law, and having failed there he was precluded from going into equity to litigate anew the same matters, unless he could show that the judgment was obtained by fraud, or that gross injustice had been done--not attributable to his own neglect, neither of which has been shown. Abrams v. Camp, 3 Scam. 291; Buckmaster v. Grundy, 1 do. 310.

Chancery will not relieve against a judgment on the ground of its being against equity, unless the defendant was ignorant of the facts of his defence, or they could not have been received in evidence. Duncan v. Lyon, 3 Johns. Ch. R. 356; Lansing v. Eddy, 1 do. 50; 2 Story's Eq. Jur. § 887, 894, 895, 897, and cases cited.

If the complainant had legal offsets, he should have produced them at the trial, and not suffered the defendant to obtain a judgment and then go into a long suit in chancery, to enjoin and obtain a set-off that might have been done at law.

If courts of law and equity have concurrent jurisdiction and the parties consent to a trial at law, equity will not re-try the matter, and they will not only be bound by all the matters tried, but such as might have been acted on. Baker v. Elkins, 1 Johns. Ch. R. 465; Andrews v. Fenton, 1 Ark. 197-9; Elston v. Blanchard, 2 Scam. 421; Lansing v. Eddy, 1 Johns. Ch. R. 50; 2 Barb. & Har. Dig. 24, § 4; Foster v. Wood, 6 Johns. Ch. R. 89; Le Green v. Gouvernour, Ib. 492-5; Cunningham v. Caldwell, Hardin 136; Weirick v. De Zoya, 2 Gilm. 385.

2. In an action of covenant like the one on which Grundy's judgment was obtained, Buckmaster might, under our statute, have set off his judgment against Grundy, as also any unliquidated damages, arising from non-fulfilment of contract by Grundy. Rev. Stat. 416, Pr. § 19; R. L. 1833, 491; Barbour on Set-off, 105; 1 Chitty's Pl. 524, 607; Simpson v. Hart, 14 Johns. 75; Edwards v. Todd, 1 Scam. 463; Nichols v. Ruckels, 3 do. 299; Kaskaskia Bridge Co. v. Shannon, 1 Gilm. 25; Duncan v. Lyon, 3 Johns, Ch. R. 350.

3. Buckmaster's bond, to make Grundy a good title to the land, and Grundy's bond to expend $2,500 in improvements, made at the same time, ought to be regarded as dependent covenants, and taken together as a part of the same transaction; and as the land was so incumbered by a mortgage and right of dower as to render it impossible for Buckmaster to have made a good title according to his bond, and as Grundy might lose not only his purchase money, but also all moneys expended on improvements. Buckmaster's failure to make a good title released Grundy from his promise to expend $2,500. The interest of the parties must be derived from the whole transaction. 11 Pick. 154; 10 do. 250, 302. And in any event, the measure of damages, if any damages are allowed, would be--what advantage or gain it would have been to Buckmaster to have $2,500 more expended than was done, and which the depositions show was nothing.

4. The decree pro confesso as to Grundy, taken in 1834, could not in any case be taken advantage of in this late stage of the case; but, in this instance, it must be presumed to have been opened by consent, or on motion, as no final decree was even entered; the complainant goes on, and makes the administrator of Grundy and the heirs new parties, and the court orders that they be permitted to answer to the merits of the bill.

5. The court should have given a decree against the complainant for costs.

“Where a party might have defended at law, he shall pay all cost both at law and equity.” 3 Barb. & Har. Dig. 268, § 84; Ibid. 266, § 61; Ibid. 268, § 84.

The counsel for the appellee would also refer the court to the following authorities on the point of interest.

1. Interest is not recoverable for unliquidated damages, or on uncertain demands. Anonymous, 1 Johns. 315; Newell v. Griswold, 6 do. 44; Holliday v. Marshall, 7 do. 213; Campbell v. Mesier, 6 Johns. Ch. R. 24; Consequa v. Fanning, 3 do. 602. In the case of Reid v. Rensselaer Glass Factory, 2 Cowen, 436, the court remark “that interest is allowed, 1. Upon a special agreement; 2. Upon an implied promise to pay it; 3. Where money is withheld against the will of the owner; 4. By way of punishment for any illegal conversion or use of another's property; 5. Upon advances of cash, on the authority of Liotard v. Graves,” 3 Caines 234, which is the only case we find sustaining this latter doctrine. Shewel v. Givan, 2 Blackf. 314; Gilpin v. Consequa, 2 Peters' Dig. title “Interest,” 531 § 16; Youqua v. Nixon, Ibid. § 18; Evarts v. Nason's Estate, 11 Verm. 123; Rev. Stat. chap. 54, title “Interest,” § 2. In the case referred to from 3 Cowen, the court in giving their opinion remark, “that there is no subject in the whole range of the English law, on which the authorities are so little in harmony with each other as on that of interest; and the American authorities are scarcely less contradictory. It may now, however, be considered as settled in England, that no interest is recoverable upon money lent, money had and received, or paid, laid out and expended without an express contract for its payment, or proof that the money had actually been used by the defendant, or of special circumstances, from which an agreement to pay interest may be inferred.” Page 420.

It is further contended that the circumstances of this case do not show any right in Buckmaster to make Grundy his debtor, by the advances of money for the purpose of making improvements on the land.

If, however, Buckmaster has suffered any damage from the failure of Grundy to advance his $2500, how are those damages to be measured? We contend this to be the true rule. If the expenditure of the $2500 by Grundy would have enhanced the value of the premises, such enhanced value would be the measure for Buckmaster's damages, he having expended his $2500. If the further expenditure of $2500 by Grundy would not have enhanced the value of the premises, then Buckmaster's damages are merely nominal.

The opinion of the court was delivered by CATON, J.

Buckmaster and Prickett purchased of Thomas Carlin certain lands on the Mississippi river, called Point Ferry, for $4000, which they secured by notes and mortgage on the premises. Afterwards, and on the 9th of January, 1819, they entered into a contract with William Grundy, the ancestor of the present defendant, by which he was to be let into the purchase upon equal terms with themselves. At that time, Buckmaster gave Grundy a bond, whereby he agreed to convey to Grundy one third of the premises within a given time, and Grundy gave to Buckmaster a bond, binding himself to pay one third of the purchase money of the premises as the notes should fall due respectively. It was the intention of the parties to lay off a town upon the premises, establish a ferry, etc. In pursuance of this object, they all three entered into a sort of mutual bond on the same day, whereby each bound himself to the other to expend, in erecting good substantial buildings in the town, $2500. In the same instrument, it was also agreed that each should pay an equal part of all the necessary expenses about the town, ferry and roads. As a bonus for being admitted into this enterprise on equal terms with the other proprietors, Grundy gave to Buckmaster $100 in cash, and his note for $300. Grundy soon after went to Kentucky, where he resided, and never paid any further attention to the town. The $300 note was assigned by Buckmaster to Prickett, and by Prickett to one Gaither, who sued Grundy on the note, and obtained judgment in Kentucky for the amount. Grundy then filed a bill in chancery in Kentucky against Gaither, Buckmaster and others, and obtained a decree perpetually enjoining that judgment, and declaring the two bonds between Buckmaster and him void. That decree contains several other provisions, but as Buckmaster was never served with process in that cause, and never appeared, or in any way submitted to the jurisdiction of that court, we do not think it necessary to take any further notice of it, as Buckmaster was not bound, nor were his rights in any way affected by it. There is nothing now before us which can be influenced in the least by that decree.

In October, 1829, Buckmaster recovered a judgment in the Madison circuit court against Grundy, for $1767.82, on the bond given by Grundy for the payment of his proportion of the purchase money. This judgment still remains unsatisfied, nor can it be made from the estate of Grundy in this state.

In October, 1836, Grundy obtained a judgment against Buckmaster, in the Johnson circuit court, for $3562, on the bond for a deed given by Buckmaster to Grundy. This judgment Grundy was proceeding to collect.

Several other controversies existed between the parties, which have either been settled or disposed of by former decrees, of which no complaint is now made, so that it is unnecessary to refer to them here.

For the purpose of settling all these difficulties, and particularly to get relief against the judgment in Johnson county, which is alleged to be unjust, this bill was filed by Buckmaster.

I do not think any sufficient reason is shown for going behind this judgment. It does not appear that the judgment was obtained by fraud, or was the result...