Cobbs v. Niblo

• Decision Date: 28 February 1880
• Citation: 6 Bradw. 60,6 Ill.App. 60
• Parties: MARY J. COBBSv.JAMES A. NIBLO ET AL.
• Court: United States Appellate Court of Illinois

6 Ill.App. 60

6 Bradw. 60

MARY J. COBBS

v.JAMES A. NIBLO ET AL.

Appellate Court of Illinois, Fourth District.

February Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Richland county; the Hon. WILLIAM C. JONES, Judge, presiding. Opinion filed April 2, 1880.

Messrs. WILSON & HUTCHINSON and Mr. F. D. PRESTON, for appellant; cited Bailey v. Moore, 25 Ill. 347; Linn v. Sigsbee, 67 Ill. 75; 2 Story's Eq. § 722.

Messrs. SHAW & LONGENECKER, for appellees; that the limitation must be reasonable and the consideration capable of being upheld, cited Linn v. Sigsbee, 67 Ill. 75; Wiggins Ferry Co. v. O. & M. R. R. Co. 72 Ill. 360.

A court of equity will not aid its enforcement: Craft v. McCorroughy, 79 Ill. 346; Wyatt v. Mayfield, Ill. Syn. Rep. 19; King v. Manning, 33 Ill. 227; Chittenden v. Rogers, 42 Ill. 95.

WALL, J.

The appellant filed her bill in Chancery, making the appellees parties defendant. The bill alleged that complainant and defendant, James A. Niblo, were partners in the marble business from January, 1876, to January, 1879; at the latter date the partnership was dissolved, upon certain terms then agreed upon, including among others, that if the complainant would pay defendant, James A. Niblo, seventy-five per cent. for his half of the goods, notes, contracts and accounts, after paying all firm debts, and take all finished work at cost and carriage, said Niblo would give complainant the worthless notes, and would go out of the business and not resume it in said Richland county; that an estimate was made accordingly, and that complainant paid the amount found due under the arrangement. That in making said estimate the complainant was compelled to rely upon the statements of defendant, and did so, and that said Niblo falsely represented the facts as to sundry matters set out in the bill, such as the amount of indebtedness of the firm, the amount and character of the firm assets, the amount received by Niblo from sundry persons, giving details and particulars not necessary to set out; that said Niblo was about to resume the marble business in the city of Olney, contrary to his agreement, but in the name of his wife, the co-defendant; that the house and lot where the business was to be conducted was held in the name of the wife, but really belonged to said James A., and that he had used the means derived from his settlement (including a note of some six hundred dollars) with complainant in the acquisition of said property. These are the main points presented in the bill, which sought to enjoin the prosecution of said marble business by said Niblo, and prayed for an account and adjustment of the various matters in which the alleged false representations had been made. The Circuit Court sustained a demurrer to the bill, and this ruling is assigned as error.

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