Clark v. Mallory

Decision Date17 April 1900
Citation56 N.E. 1099,185 Ill. 227
PartiesCLARK v. MALLORY et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to appellate court, First district.

Creditors' bill by Frank H. Clark against De Witt C. Mallory and others to enforce the collection of a judgment. From a judgment for defendants, affirmed by the appellate court (83 Ill. App. 488), plaintiff brings error. Affirmed.E. F. Thompson and Pliny B. Smith, for plaintiff in error.

Peck, Miller & Starr, for defendants in error.

In the summer of 1888 the firm of H. E. Mallory & Bro., composed at the time of Lucy Ann Mallory and De Witt C. Mallory, became indebted to the Drovers' National Bank of Chicago. On December 1, 1888, the firm was dissolved, De Witt C. Mallory retiring; and on March 23, 1889, Lucy Ann Mallory made and executed to the bank, in renewal of an unpaid balance of that indebtedness, a judgment note for $1,933.27, signed, ‘H. E. Mallory & Bro., Lucy Ann Mallory.’ On April 17, 1889, she made a second judgment note to the bank for $3,000, and signed the same, Lucy Ann Mallory.’ These two notes evidenced the total unpaid balance due the bank from the firm of H. E. Mallory & Bro., and, neither being paid, they were indorsed, for convenience, to Frank H. Clark. On November 11, 1889, judgment was entered upon the $3,000 note, and on June 5, 1890, likewise upon the one for $1,933.27. The last judgment, including interest, attorney's fees, and costs, amounted to $2,225.25. Subsequently, in February, 1896, plaintiff in error filed his creditor's bill, based on this latter judgment, making the defendants in error parties thereto, by which he sought to collect the amount of said judgment from De Witt C. Mallory. On the hearing the circuit court dismissed the bill for want of equity, and on appeal the appellate court affirmed the decree, from which judgment of affirmance plaintiff in error prosecutes this writ of error.

WILKIN, J. (after stating the facts).

The point is made and argued that the judgment upon which the creditors' bill of plaintiff in error is based is invalid because taken on a note executed by one of the partners in the firm name after the dissolution of the partnership of H. E. Mallory & Bro. The decisions of the circuit and appellate courts do not seem to have turned upon, or to have been influenced by, that question; and, as the judgment of the appellate court will be affirmed upon other grounds, it is not necessary for us to consider the point.

It appears from the record that, after the taking of judgment by confession on the notes referred to in our statement of the case, plaintiff in error had negotiations with Lucy Ann Mallory (now Randolph), through her attorney, looking to a settlement of the indebtedness due on these notes, which resulted in the making of the following instrument or instruments:

Frank H. Clark, of Chicago, Ill., being the owner of two notes, one dated March 23, 1889, for $1,933.27, signed, ‘H. E. Mallory & Bro. and Lucy A. Mallory,’ and also one dated April 17, 1889, for $3,000, signed, Lucy A. Mallory,’ and both running to Drovers' National Bank, which notes have each been put into judgment by said Clark, as plaintiff, against Lucy A. Mallory, in the circuit court for the county of Cook, in the state of Illinois, and said plaintiff having agreed upon a settlement of said judgments with said Lucy A. Mallory (now Randolph), so far as her liability thereon is concerned, and by virtue of which settlement she is to be forever released from all liability thereon, both as to damage and costs, the terms of said settlement are as follows: Said Lucy A. is to execute a quitclaim deed of lots 23, 24, block 14, and lot 9, block 5, Rhodes & Clark's subdivision, on Sec. 26 and 27, T. 40 N., R. 12 E., and lot 30, block 4, in A. F. Faucett's subdivision, etc., all in Cook county, Illinois; also, N. E. 1/4 of N. W. 1/4 Sec. 33, T. 82 N., R. 26 W., in Boone county, Iowa (all of said land formerly owned by Herbert E. Mallory at the time of his death, and the interest that said Lucy A. has in said lands she derives through the will of Herbert E. Mallory, her former husband); also, said Lucy is to release to said Clark all claim she has for rent of house and lot 30, above referred to, from J. F. Waugh, present tenant of said lot; also, to release to said Clark all claim that she has against A. Tremen & Son, of Omaha, Neb.; also, all claim that she has against De Witt C. Mallory growing out of a partnership between herself and said Mallory in the live-stock business, as shown by the company's books now in the hands of A. D. Eddy, attorney, at Chicago, Ill.; and she is also to pay said Clark $1,500 cash. On the performance on her part of all the foregoing, she is to be forever released and freed from all obligation and liability on said judgments, and said notes upon which the...

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20 cases
  • Natrona Power Company v. Clark
    • United States
    • Wyoming Supreme Court
    • 6 Mayo 1924
    ... ... Current v. Muir, (Minn.) 108 N.W. 870; Schultz ... v. Plankinton Bk. (Ill.) 30 N.E. 346; Schneider v ... Kirkpatrick, 80 Mo.App. 145; Silchow v ... Stymets, 26 Hun. 145; Hankinson v. Riker, 30 ... N.Y.S. 1040; Springarn v. Rosenfeld, 24 N.Y.S. 733; ... Clark v. Mallory, (Ill.) 56 N.E. 1099; Demple v ... Carroll, 21 Wyo. 447; an express reservation on the face ... of the release would be ineffective to change its legal ... effect as a discharge of all parties liable, Abb v. Co., ... (Wash.) 68 P. 954; Larson v. Anderson (Wash.) ... 182 P. 957; Ducey ... ...
  • Dwy v. Conn. Co.
    • United States
    • Connecticut Supreme Court
    • 26 Enero 1915
    ... ... Bank, 130 Mass. 132, 135; Hale v. Spaulding, 145 Mass. 482, 14 N. E. 534, 1 Am. St. Rep. 475; Parmelee v. Lawrence, 44 Ill. 405, 413; Clark v. Mallory, 185 Ill. 227, 233, 56 N. E. 1099 ...         Chitty, in the sixteenth edition of his work on Contracts (page 812), gives ... ...
  • In re Pre-Press Graphics Co., Inc.
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Northern District of Illinois
    • 22 Junio 2004
    ... ... Clark v. Mallory, 185 Ill. 227, 56 N.E. 1099, 1100-01 (1900)). Accordingly, the Court rejects Defendants' contention that the parties' understanding was ... ...
  • Cherney v. Soldinger
    • United States
    • United States Appellate Court of Illinois
    • 9 Octubre 1998
    ... ... Co., 18 Ill.App. 47, 50 (1885). The rule was also applied outside of the tort area to co-obligors on a contract. [299 Ill.App.3d 1071] Clark v. Mallory, 185 Ill. 227, 56 N.E. 1099 (1900); Parmelee v. Lawrence, 44 Ill. 405 (1867) ...         The common law rule was intended to ... ...
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