Carroll v. Forsyth

• Decision Date: 30 September 1873
• Parties: CLARA D. CARROLL et al.v.HENRY H. FORSYTH.
• Court: Illinois Supreme Court

69 Ill. 127

1873 WL 8421 (Ill.)

CLARA D. CARROLL et al.

v.HENRY H. FORSYTH.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. LAMBERT TREE, Judge, presiding.

This was a claim filed by the appellee, against the estate of Charles Carroll, deceased, for a balance claimed to be due the appellee on account for services. The opinion of the court states the material points and facts.

Mr. OBADIAH JACKSON, for the appellants.

Mr. JULIUS STARR, and Mr. D. J. SCHUYLER, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

We propose only to consider the question whether, under the evidence, the Statute of Limitations is a defense to appellee's claim, or any portion of it. His claim is for services as superintendent and bookkeeper, rendered the intestate, in a distillery in Peoria, from 1860, until July 1, 1864. There is no question but that more than five years had elapsed after the claim was due, before the commencement of the suit, but appellee relies upon a payment and subsequent promise within five years. The evidence relied upon to establish the subsequent promise and payment, is that of Robert M. Cox, the brother-in-law of appellee, and the following is the only portion of it which relates to these questions:

“Carroll came to me once, and asked me how much money I loaned Forsyth, and I told him $3500; and he told me not to ask Forsyth for the money, that he would pay it to me in a short time; that was in the fall of 1864; it was after the business had been wound up. I can not say when they wound their business up, but I had stopped my distillery at that time. I do not know exactly when they did stop their distillery.

At several different times after that, he had promised to pay me the money from one time to another; one time that I am positive of was in 1866, in March, I believe. I went to Carroll and told him that I needed the money, and wanted to know if he could let me have some; that was in Peoria I met him at that time, and I told him I was going away, next day, to Kewanee, and he promised me that he would raise some money and give it to Forsyth, or send it to me. In a few days after that I received $500.

I guess I have had conversations a dozen different times after that, here in Chicago as well. I came here at different times to see him, and to see if I could get the money from him.

I think the last conversation was at the Board of Trade in Chicago, and it was either in the fall of 1869 or 1870, I am not positive which, and that he told me he had a large deal in wheat and pork, and just as soon as he wound up that deal he would pay me. Mr. Carroll told me that he had--just as I stated before--that that he had considerable money invested in pork and wheat, and just as soon as he got that deal settled up he would settle and pay me the balance.

The only time that I remember of him promising to pay interest, was the first time he came to me and told me not to ask Forsyth for money, that he would pay me, and would pay me interest on the money; I do not think there was any rate of interest mentioned.

Q. Now then, Mr. Cox, I will ask you, sir, how Mr. Carroll came to make this promise to you; what was the basis of this promise?

A. Well, I do not know; I had nothing to do with Carroll; he came to me himself and told me that he owed Forsyth this money, and that he told him--I think it was before he went to Washington--that he had told Forsyth to pay me, I suppose, and draw the money out of the business, and when Forsyth came for the money, he told me Carroll was in Washington.

Q. What was the amount he agreed to pay?

A. $3500.

Q. That is the amount that he said he owed Forsyth at that time?

A. He didn't state to me he owed him any amount.

Q. Was it stated then, generally, that he was indebted to him generally?

A. He didn't say anything about the exact amount, but told me that he would pay me $3500 for Henry Forsyth--that was the amount Forsyth was owing me. I paid $3500 to Peter Spencks, the man I bought the house from; I bought it for Forsyth; he said he was owing him, but did not say any particular amount.”

On cross-examination, he testified further as follows:

Q. “How much of this $3500 has ever been paid?

A. I suppose there is about $2000 owing to me. Q. Who paid this $500 that you speak of--that is, who did you get it from?

A. It was sent to me from Peoria by Forsyth.

Q. Then you do not know of your own knowledge who Forsyth got it from?

A. Well, Carroll told me that he--in Chicago, after that time--he asked me if Mr. Forsyth sent me $500; I told him he did. He told me he gave Forsyth $500 to send to me. I think that conversation was in 1866; it might have been two or three months, or may be more, after I secured the $500. I received the $500 along about the last of March--can not fix the exact date; it was either a check or a draft--I am not positive--it was one, I think; think it was Carroll's.”

The law, as recognized by this court, is, that to remove the bar of the Statute of Limitations it is incumbent on the plaintiff to prove an express promise to pay the money, or a conditional promise with a performance of the condition, or an...