Arthur T. Howe, James B. Ormsby, Mary A. Bovee, and Frederick A. Heath, partners under the firm name “Marblehead Lime Company,” brought an action of assumpsit, in the Superior Court of Cook county, against E. G. Frazer, for certain quantities of lime which they had sold and delivered to him. Frazer, among others, filed the following pleas:
“And now comes the defendant, and by leave of the court files this his second fifth amended plea of set-off in this behalf in the above entitled cause, and says that the plaintiffs ought not to have and maintain their aforesaid action against this defendant, because he says the goods, wares and merchandize, to-wit, Marblehead lime, to recover for which the plaintiffs herein have brought this suit, was furnished and delivered to this defendant by the plaintiffs in pursuance of the contract hereinafter mentioned, and that the plaintiffs were, before and at the time of the beginning of this suit, and still are, indebted to this defendant in the sum of, to-wit, $10,000, for damages sustained by this defendant, arising out of the failure on the part of the plaintiffs to perform the said contract, to-wit, on, to-wit, the 8th day of March, 1879. The plaintiffs, Arthur T. Howe, James B. Ormsby, Frederick A. Heath, and one Halsey A. Bovee, doing business under the name of the ‘Marblehead Lime Company,’ were operating a number of lime kilns near Quincy, Illinois, and manufacturing a superior quality of lime, sold in the market under the brand of ‘Marblehead lime,’ of which said lime they claimed to be the sole manufacturers, and of which said brand the said Marblehead Lime Company claimed to be the exclusive owner, and the said parties last named, at the time last aforesaid, in consideration that this defendant, who for a number of years previous to that had been engaged in selling lime in the territory hereinafter mentioned, should, at his own expense, undertake to introduce said Marblehead lime, and work up a trade or demand therefor in the following territory, to-wit, all of the territory lying north of the Chicago, Burlington and Quincy railroad, or the railroad commonly called the Chicago, Burlington and Quincy railroad, in the State of Iowa; also, to-wit, the north-western part of the State of Illinois, as well as various Mississippi river points, but particularly the territory, to-wit, the territory lying along the Chicago, Rock Island and Pacific railroad, its branches and tributaries, in the State of Iowa, agreed to furnish this defendant all of the lime of the above mentioned brand that he, this defendant, might need to supply his trade in said territory for the period of, to-wit, five years, at the following prices at the kilns, to-wit: Sixty (60) cents per barrel in barrel, and forty (40) cents per barrel in bulk, and further agreed, for the consideration aforesaid, that this defendant should have the exclusive right of handling and selling said lime throughout said territory for said period of five years; that immediately after the making of said agreement this defendant entered upon the performance of the same; that afterwards, to-wit, on the 9th day of August, 1879, the plaintiffs herein, doing business under the name of the ‘Marblehead Lime Company,’ became possessed of all the lime kilns, quarries, business, good will, and all other property rights and privileges belonging to said first named Marblehead Lime Company, and succeeded to all the interest that said first named Marblehead Lime Company had in the contract aforesaid, and in consideration thereof, on, to-wit, the day last aforesaid, assumed and adopted all of the obligations thereof, and in consideration that this defendant should continue to perform his part of said contract, and of the advantages to result therefrom to the plaintiffs. The plaintiffs herein, on, to-wit, the date last aforesaid, undertook and agreed with this defendant to carry out and perform said contract, and all of the provisions thereof, in place and stead of the first named Marblehead Lime Company.
"And this defendant avers, that he, the defendant, did at his own expense continue to perform his part of said contract after the plaintiff had adopted the same as aforesaid, and by great labor and the necessary expenditure of a large sum of money, to-wit, the sum of $10,000, this defendant performed his part of said contract, except in so far as he was prevented by the acts of the plaintiffs, hereinafter mentioned; that by reason of this defendant's continuing to carry out his part of said contract as aforesaid, the plaintiffs derived great advantage and profit from said contract, to-wit, the sum of $12,000, but that afterwards, to-wit, on the 1st day of December, 1880, the plaintiffs failed and refused to any longer perform their part of said contract, which said refusal and failure has continued hitherto, by reason of which failure this defendant was deprived of the exclusive right of handling and selling said lime in said territory for the unexpired term of said contract, to-wit, three years, which exclusive privilege was worth, to-wit, $10,000, and was unable to supply the demand of his said trade, to-wit, 40,000 barrels per annum, with said Marblehead lime, for the period of three years, and lost many of his customers, and lost the profits that would accrue to him under said contract, and was, by reason of the premises, unable to any longer purchase said lime at the price mentioned in said contract, and was otherwise greatly injured, to the damage of this defendant of $10,000; that said last named sum of money was and is due from the plaintiffs to this defendant, and that the same exceeds the damages sustained by reason of the non-performance by this defendant of the several supposed promises mentioned in said declaration, and out of which said sum of money this defendant is ready and willing, and here offers, to set off and allow the plaintiffs full amount of said damages; and this the defendant is ready to verify, wherefore this defendant prays judgment for the balance of said $10,000, to-wit, the sum of $9640, and also whether the said plaintiffs ought further to have and maintain their aforesaid action.
"And the said defendant, for a further plea in this behalf, now filed by leave of court, says that the plaintiffs ought not to have and maintain their aforesaid action, because he says that the plaintiffs were, before and at the time of the commencement of this suit, and still are, indebted to him, the defendant, in the sum of $10,000, for goods, chattels and effects before that time sold and delivered by the defendant to the plaintiffs at their request; and in the like sum for goods, chattels and effects before that time bargained and sold by the defendant to the plaintiffs at their request; and in the like sum for work and services before that time done and bestowed by the defendant for the plaintiffs at their request; and in the like sum for money before that time lent by the defendant to the plaintiffs at their request; and in the like sum for money before that time paid and expended by the defendant for the use of the plaintiffs at their request; and in the like sum for money before that time received by the plaintiffs for the use of the defendant; and in the like sum for interest on divers sums of money before that time foreborne by the defendant to plaintiffs at their request, for divers spaces of time before then elapsed; and in the like sum for money found to be due from the plaintiffs to the defendant on an account then and there stated between them; and being so indebted, the plaintiffs then and there promised the defendant to pay him, on request, the several sums of money so due to him as aforesaid, which said sums of money so due from the plaintiffs to the defendant as aforesaid, exceed the damages sustained by the plaintiffs by reason of the non-performance by the defendant of the several supposed promises in the said declaration mentioned, and out of which said sums of money the defendant is ready and willing, and hereby offers, to set off and allow to the plaintiffs the full amount of the said damages; and this the defendant is ready to verify, wherefore he prays judgment if the plaintiffs ought to have their aforesaid action against him, etc.”
The following replications were filed to these pleas:
“And the said plaintiffs, as to the said plea of the said defendant by him secondly above pleaded, (the order of pleas was afterwards changed, and by order of court above replication is to stand to special amended plea last filed,) say that the said plaintiffs, by reason of anything in said plea alleged, ought not to be debarred from having and maintaining their aforesaid action against the said defendant, because they say that the several supposed agreements and causes of set-off in said plea mentioned were not to be performed within the space of one year from the making thereof, and that no agreement in respect of or relating to the supposed causes of action in said plea, nor any memorandum or note thereof, wherein the consideration or considerations for said promises, or either of them, was or were stated or shown, was or is in writing, or was or is signed by the said plaintiffs, or either of them, or any other person by them thereunto lawfully authorized, according to the form of the statute in such case made and provided; and this the said plaintiffs are ready to verify, wherefore they pray judgment and the damages by them sustained on occasion of the non-performance of the several promises in said declaration, to be adjudged them.
"Now come the said plaintiffs, by Eric Winters, their attorney, and for...
