Campbell v. Goodall

• Decision Date: 28 February 1881
• Parties: JOHN G. CAMPBELLv.JOHN GOODALL ET AL.
• Court: United States Appellate Court of Illinois

8 Ill.App. 266

8 Bradw. 266

JOHN G. CAMPBELL

v.JOHN GOODALL ET AL.

Appellate Court of Illinois, Fourth District.

February Term, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Jackson county; the Hon. O. A. HARKER, Judge, presiding. Opinion filed April 7, 1881.

Mr. A. D. DUFF, Mr. G. W. SMITH and Mr. R. J. STEPHENS, for appellant; as to estoppel and when it arises, cited Hefner v. Dawson, 63 Ill. 403; Hefner v. Vandolah, 62 Ill. 483; Noble v. Chrisman, 88 Ill. 186; Boggs v. Olcott, 40 Ill. 303; Kitner v. Whittock, 88 Ill. 513; Silverman v. Chase, 90 Ill. 37.

As to the effect of a judgment as an estoppel: Cromwell v. County of Sac, 94 U. S. 351

Mr. W. J. ALLEN and Messrs. BARR & LEMMA, for appellees; that where the evidence is conflicting, if the verdict is not clearly against the evidence, it will not be disturbed, cited C. & R. I. R. R. Co. v. N. Ill. Coal, etc., Co. 36 Ill. 60; Allen v. Smith, 3 Scam. 97; Weldon v. Francis, 12 Ill. 460; Hope Ins. Co. v. Lonergan, 48 Ill. 49; T. W. & W. Ry. Co. v. Moore, 77 Ill. 217; Miller v. Balthasser, 78 Ill. 202; Gilbert v. Bone, 79 Ill. 341.

Instructions should be considered as a series: Nor. L. Packet Co. v. Binninger, 70 Ill. 571; Lawrence v. Hagerman, 56 Ill. 68.

The third instruction for defendants, that a verdict must be against all the defendants or none, announces a correct principle of law: Gould v. Sternberg, 69 Ill. 531; C. & St. L. R. R. Co. v. Easterly, 89 Ill. 156.

Instructions should apply to the case: Leach v. Nichols, 55 Ill. 273; Mitchell v. Town of Fond Du Lac, 61 Ill. 174.

It is of the essence of an estoppel in pais that the party should have been misled to his prejudice: Pitts Sons Mfg. Co. v. Poor, 7 Bradwell, 24; The People v. Brown, 67 Ill. 435.

When a partnership has terminated the several partners lose their authority to act for the whole: Miller v. Neimerick, 19 Ill. 172.

BAKER, J.

Assumpsit on the common counts by appellant against appellees. Verdict and judgment in the Jackson Circuit Court in favor of appellees. The claim made by appellant was that on the first day of October, 1876, he executed six promissory notes, each for the sum of $430.51, together with and as security for appellees, these notes being payable to Benedict, Hall & Co. and bearing seven per cent. interest from date; that a suit was instituted in the county court on two of these notes and a judgment rendered for the amount of the notes, against appellees and appellant, on the 18th day of January, 1878, upon which judgment an execution was issued, and that he paid off this execution on the 30th of April, 1878, the payment being made to the deputy sheriff Toler, and the amount paid being $973.05.

The theory of the defense was that although the claim of Benedict, Hall & Co. was the debt originally of the appellees, as co-partners, yet, that several months before the making of these notes in controversy, appellees had sold out their stock of goods, accounts, etc., to the firm of North, Campbell & Co., of which firm the plaintiff was a member, in consideration of which sale the firm of North, Campbell & Co. had assumed the payment of all the debts of Goodall, Campbell & Dunaway, including this debt to Benedict, Hall & Co.; that the firm of Goodall, Campbell & Co. was thereupon dissolved, and that these notes in controversy were executed by the plaintiff in pursuance and in part performance of this contract of North, Campbell & Co. The plaintiff contended in rebuttal that the firm of North, Campbell & Co. only assumed the payment of debts of Goodall, Campbell & Dunaway to the amount of $8,600, and that they had actually paid more than that amount exclusive of this Benedict, Hall & Co. debt; denied that the execution of these notes by him had any relation to or anything to do with the contract of North, Campbell & Co., and it was also contended as matter of law, that appellees having failed to raise the question of the want of authority in M. C. Campbell to execute the notes in the firm name at the time suit was instituted on the notes, were estopped from setting up any such defense in this action, especially under the pleadings in the cause.

The testimony on the question whether appellant signed the notes as security for Goodall, Campbell and Dunaway was quite conflicting. We are of the opinion the court very properly admitted in evidence, as calculated to throw light upon that issue, testimony as to the terms of the contract made between that firm and North, Campbell & Co. at the time of the sale; and also, that there was no error in instructing the jury they might take into consideration the evidence before them in regard to the terms of the contract in passing upon the question whether appellant signed the notes as surety. The second instruction given for appellees was also proper. It merely informed the jury the burthen was upon the plaintiff to establish by a preponderance of the evidence that he signed the notes as surety for Goodall, Campbell & Dunaway. Paul v. Berry, 78 Ill. 158. The fact that appellees, in order to meet the prima facie case made by appellant, introduced testimony tending to show appellant signed the notes in a capacity other than that of security and under circumstances claimed to be inconsistent with appellant's theory, did not have the effect to shift the burden of proof.

It does not appear from the record that it was distinctly claimed by appellees on the trial that M. C. Campbell, after the dissolution of the firm of Goodall, Campbell & Dunaway, had not authority to execute the notes in the name and on behalf of the firm. But it does appear the notes were executed after the dissolution, by M. C. Campbell, in the name of the firm; and Dunaway testified he never knew anything about the notes until suit was brought on them in the county court; and Goodall testified he knew nothing of the existence of the notes until notice in regard to them was received from the bank. The court, at the instance of appellees, instructed the jury as follows:

“(3.) The court instructs you for the defendants that in this case you cannot find a verdict against any one of the defendants without finding a verdict against them all.”

“(4.) That after the dissolution of a firm the admissions or statements of one of the late partners made in the absence of the other will not bind the other members of the firm.”

And the court refused to give the two following instructions, asked by appellant:

“(4.) No question as to whether or not M. C. Campbell had authority to sign the firm name, when the notes introduced in evidence were made, nor as to whether the partners were bound by these notes, can arise in this case under the issues formed and now being tried, and that question is not now before the jury, or to be considered by them.”

“(5.) If the debt which was settled by the series of notes mentioned in evidence, of which series the two notes introduced in evidence were a part, was the debt of the defendants as co-partners, and the plaintiff became liable as sureties of the firm for that debt, or any part of it, then the fact that the co-partnership was afterwards dissolved does not affect the right of the plaintiff to recover...