Elizur Southworth v. Hoag

• Decision Date: 31 January 1867
• Citation: 42 Ill. 446,1867 WL 4951
• Parties: ELIZUR SOUTHWORTHv.CONSTANTINE HOAG.
• Court: Illinois Supreme Court

42 Ill. 446

1867 WL 4951 (Ill.)

ELIZUR SOUTHWORTH

v.CONSTANTINE HOAG.

Supreme Court of Illinois.

January Term, 1867.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Montgomery county; the Hon. H. M. VANDEVEER, Judge, presiding.

Mr. G. B. BURNETT, for the appellant.

Mr. W. H. HERNDON, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action of assumpsit, brought to the September Term, 1865, of the Montgomery Circuit Court, by Elizur Southworth against Constantine Hoag, William Kissick and Augustus Adams, on a promissory note. Hoag, alone, was served with process, and he pleaded the general issue, and a total failure of consideration, setting out the facts, and, for a third plea, a partial failure of consideration, showing wherein and to what extent.

The cause was tried by a jury on the issues made up on these pleas, and a verdict for the defendant. A motion to set aside the verdict and for a new trial was refused, and exceptions taken, and the cause brought here by appeal. The error assigned is, that the verdict is contrary to the evidence.

It appears from the bill of exceptions, that Southworth was a substitute broker, and the defendant made a contract with him to put in an acceptable substitute for one John McKenna, who had been drafted into the military service of the United States from Walshville precinct, in Montgomery county. The defendant paid, on this account, to George P. Fowler, the plaintiff's agent, four hundred dollars, and executed the note in suit for three hundred and seventy-five dollars. The substitute was to be put in for three years. The plaintiff himself being then at Jacksonville, Fowler telegraphed to him to procure and put in such substitute, to which plaintiff replied that the government would not accept substitutes for three years, but he would put in one for one year. Fowler informed the parties to the note of this, and then made another contract with them about the 5th of January, 1865, by which it was agreed that the plaintiff should put in a substitute for one year for six hundred and fifty dollars, that he should retain the four hundred dollars paid, and the note given should be credited with one hundred and twenty-five dollars. Fowler credited the note with this amount, and then telegraphed plaintiff to put in a substitute for one year. Fowler stated there was no agreement made that McKenna should be released within any specified time, but he expressed the opinion, to parties who inquired about this, that he would be released in a few days. Lawrence Welsh testified for defendant, that he was present when the first contract was made, and was present when the second dispatch was sent, and heard Fowler say that McKenna would be home on Friday or Saturday; does not know when he got out of the service, but did not see him at Litchfield until June, 1865; McKenna was drafted, and left Litchfield to report at Jacksonville, about the last of December, 1864; was not present when the second contract was made.

James Welsh testified, that he heard Southworth, at his residence in Litchfield, on the 3d or 4th of January, 1865...