Burnham v. Roberts

• Decision Date: 30 September 1873
• Citation: 1873 WL 8538,70 Ill. 19
• Parties: NELSON BURNHAMv.JOHN D. ROBERTS.
• Court: Illinois Supreme Court

70 Ill. 19

1873 WL 8538 (Ill.)

NELSON BURNHAM

v.JOHN D. ROBERTS.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county; the Hon. S. D. PUTERBAUGH, Judge, presiding.

This was an action of assumpsit, brought by John D. Roberts against Nelson Burnham, to recover the price of certain claims upon an estate alleged to have been sold. The opinion of the court contains a substantial statement of the leading facts.

Messrs. MCCULLOCH & STEVENS, for the appellant.

Messrs. INGERSOLL, PUTERBAUGH BROS., & MCCUNE, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellee alleges that he sold to appellant claims on the estate of one John W. Proctor, for which he was to pay him $825; that appellee held a portion of the claims in his own right, and, by agreement, purchased other claims. He insists that it was agreed that appellee should have the claims probated against the estate, and that appellant was then to pay him for them, and that he did have them probated, but it appears they were in his own name, or in the names of the holders for his use.

Appellant, on the other hand, denies that he ever made any such purchase. He admits that there were negotiations between them in reference to some of the claims that were held by appellee, and as to their price, but insists that he was to purchase a piece of land at the administrator's sale, which he had previously sold to Proctor, and that the money for the claims was to be paid by the administrator to appellee, and that he did re-purchase the land at the administrator's sale, gave $900 for it, and paid the money to the administrator, and expected him to pay it over to appellee. It is not disputed, that he made the purchase of the land for that sum, and that he paid it to the administrator.

Each party swears to the view of the case he presents, but appellee, although he frequently, in his testimony, speaks of appellant agreeing to pay for the claims, yet he does state positively that appellant agreed to pay him. He says that, “Burnham was to pay me, I suppose; I do not think he would not pay me particularly, or I do not think he mentioned any one.” This does not look like he understood that there was a promise to pay him, or that the money was not to be paid to the administrator, as appellant swears it was to be. If there had been the sale claimed, it seems that the vendor would have had a promise to pay, and in such terms that would leave no doubt on the subject.

The administrator testified to the conversation between the parties, and, at first, says appellant was to pay appellee about $800 for the claims. On cross-examination, he says he thinks that there was no arrangement made that appellant should pay $800 for these claims, and then the land to be sold at administrator's sale, and bid off at a nominal sum, and appellee get the benefit of the sale; that there was no agreement as to what it should be bid off at, when sold. When the whole of the evidence is considered, it is by no means satisfactory. We can not comprehend why appellant would desire to purchase these claims, when the estate owed five or six thousand dollars more than could be paid, unless it was with the expectation that he could use them at their face in paying for the land. He seems to have been disposed to act fairly, and even liberally, with the estate. He could have filed a bill for a specific performance of the contract, and had the land sold, to pay him the purchase money, when, if, as he testifies, the land had depreciated, it is not probable that it would have sold for more than was due him on the purchase, and if so, the estate not being able to pay the balance, it would, in all probability, have lost all that had been paid. Again, it seems that the administrator took steps to get appellant to visit Yates City, the residence of appellee. He seems, according to his own account of the matter, to have informed appellant that appellee had the claims, and to have taken appellant and introduced him to appellee. Now, why all of this activity on his part, unless he intended to induce appellant to purchase the claims, that they might be used in paying for the land?

As evidence of the understanding of appellant, he purchased the land, not for a nominal sum, and he then paid the money to the administrator. He surely could not, under the circumstances, have considered the purchase a speculation, when it was evident that he could have received back, of the money paid, but a comparatively small percentage.

It is urged that the bill prepared and sworn to by appellant against Bird, but never filed, was improperly admitted in evidence, because it is claimed that the relation of attorney and client existed between appellant and the attorney who drew it. We are inclined to hold that the statements made to the attorney, upon which the bill in chancery was based, were privileged. It was drawn in the name of appellant, and his name was signed to it by the attorney, and he signed the name of his firm to the bill. This unmistakably establishes the relation. These acts were deliberately...