Evans v. Lohr

• Decision Date: 31 December 1840
• Citation: 3 Ill. 511,1840 WL 2994,2 Scam. 511
• Parties: JOHN W. EVANSv.GEORGE LOHR.
• Court: Illinois Supreme Court

2 Scam. 511

3 Ill. 511

1840 WL 2994 (Ill.)

JOHN W. EVANS

v.GEORGE LOHR.

Supreme Court of Illinois.

December Term, 1840.

THIS was an action of debt commenced by the appellee against the appellant, on the 19th of October, 1839, by petition and summons, on two notes of $2,300 each, both dated March 11th, 1837, one due in twelve months, and the other in two years from date.

At the November term, 1839, of the Morgan circuit court, the defendant filed three pleas. The first plea avers that previous to the commencement of the suit, the plaintiff agreed to and with the defendant and Joseph Duncan, upon the condition and for the consideration, that the said Duncan would promise and agree to pay the said several sums of money in the petition mentioned to the plaintiff, that he would cancel the notes sued upon, and surrender them up to this defendant; and that Duncan, at plaintiff's special instance and request, and by consent of the defendant, did promise and agree with the plaintiff, that he would pay to the plaintiff, the several sums of money in the petition mentioned, at a time thereafter agreed upon between him and Duncan, and that the plaintiff in consideration thereof, agreed to and with the defendant, to release him from the payment of the same. And the plaintiff did then and there, release and discharge the defendant, and accepted and received the said promises of the said Duncan, in full discharge of the defendant from the payment of the notes sued on, in the petition mentioned.

The second plea was nil debet. The third plea averred “that after the commencement of the suit, the plaintiff, in consideration that Joseph Duncan had promised the plaintiff to pay him eight hundred dollars in twenty days from the time of making said promise, and during the sitting of the Morgan county circuit court, at the November term, 1839; and also to pay him the residue of what might be remaining of the whole amount of the notes sued on, after deducting the $800, on the 1st day of March, 1840, he, the said plaintiff, agreed with said defendant, that he would dismiss the suit; and that the plaintiff did then and there release and discharge the defendant from all further payments and liabilities upon said notes; and the defendant avers that the promise and undertaking of the said Duncan, was for a valuable consideration received by him from the defendant, and was made at plaintiff's special instance and request.”

Issue was joined upon the allegations of the release of these pleas.

The cause was tried before the Hon. William Thomas and a jury. The jury returned a verdict in favor of the plaintiff for $4,231.19 debt, and $388.51 damages.

The defendant moved in arrest of judgment, which motion was overruled, and judgment rendered on the verdict. The defendant tendered his bill of exceptions, which was signed and sealed by the judge.

The defendant appealed to this court.

The reasons assigned for an arrest of judgment in the court below, were as follows:

“First, The first instructions asked by the defendant, and preserved in the bill of exceptions, should have been given as a defence under the plea of nil debet, and the court erred in overruling the instructions.

Secondly, That under the pleadings in the cause, the defendant was authorized to show a verbal discharge, and that the same was a good defence, and that the court erred in refusing to say to the jury that such was the law of the case.”

The bill of exceptions is as follows: “And now at this day came the said parties, and a jury having been impanelled to try the issue joined, and the evidence being closed, the counsel of defendant requested the court to instruct the jury, ‘That if in consideration of a promise or agreement on the part of Duncan to pay additional interest on the notes sued on, the plaintiff promised and agreed to with defendant to extend the time of payment of said notes to a time subsequent to the commencement of this suit, or to the spring of 1840, they must find for the defendant. Which instructions the court refused. The defendant's counsel then requested the court to instruct the jury, that if they believed that for and in consideration of Duncan's assuming to pay the notes in the petition mentioned, the plaintiff verbally discharged and released the said defendant from the payment thereof, that then they must find for the defendant; which instruction the court refused to give, and said the same was contrary to law, but as the counsel for the plaintiff consented that they might consider the same as law in this case, the jury might so consider it. To all of which opinions and decisions of the court, the defendant by his counsel excepts,” &c.

M. MCCONNEL and J. A. MCDOUGALL, for the appellant, relied upon the following points and authorities: “After the breach of a sealed instrument the right of action may be waived, or released by a new parol contract, or by any valid parol executory contract.” Delacroix v. Bulkley, 13 Wendell 71.

“A promise to extend the time of payment of a note, made subsequent to its execution, may be set up as a defence, when there is a sufficient consideration.” Miller v. Holbrook, 1 Wendell 317; Langworthy v. Smith, 2 Wendell 587; Blood v. Goodrich, 9 Wendell 68.

J. J. HARDIN, for the appellee:

The cases cited in the appellant's brief do not apply to this case. Duncan was no party to the suit, or to the contract between plaintiff and defendant; and any agreement between the plaintiff below, and a third person, could not vitiate or set aside the notes.

Besides, a release cannot be made by parol and the notes which were under...