Gage v. Charles A. Lewis.

• Decision Date: 30 September 1873
• Citation: 68 Ill. 604,1873 WL 8401
• Parties: JOHN N. GAGEv.CHARLES A. LEWIS.
• Court: Illinois Supreme Court

68 Ill. 604

1873 WL 8401 (Ill.)

JOHN N. GAGE

v.CHARLES A. LEWIS.

Supreme Court of Illinois.

September Term, 1873.

APPEAL from the Superior Court of Cook county; the Hon. WILLIAM A. PORTER, Judge, presiding.

This was an action of debt, brought by the appellee against the appellant and Douglas R. Hale and Richard L. Carhart, to the February term, 1873, of the Superior Court of Cook county, upon the following penal bond:

“Know all men by these presents, that we, Richard L. Carhart, James L. H. Smith, Douglas R. Hale and J. N. Gage, of Chicago, Illinois, are held and firmly bound unto Charles A. Lewis in the penal sum of $40,000, lawful money of the United States, for the payment of which well and truly to be made, we bind ourselves and legal representatives firmly by these presents. Witness our hands and seals this 19th day of February, A. D. 1872.

The condition of the above obligation is such, that whereas said Carhart & Lewis have this day dissolved the co-partnership heretofore existing between them, under the firm name of Carhart, Lewis & Co.; and whereas said Carhart has taken all of the assets of said firm, except the personal accounts of each member appearing on the books of Carhart, Lewis & Co., which have been settled and adjusted, and in part consideration thereof said Carhart has agreed to pay all the debts due by said firm, or by the said firm of Carhart, Lewis & Tappan, to any of their creditors, and to the estate of Geo. W. Tappan, deceased, and excluding, however, the personal account of either of said members of said firm appearing upon the books of Carhart, Lewis & Co., and to save and keep harmless said Lewis from any and all of the same: Now, therefore, if said Carhart shall pay all of said debts, claims and demands, due or to become due by said firm of Carhart, Lewis & Co., and Carhart, Lewis & Tappan, to any and all persons whatsoever, and to said estate of Geo. W. Tappan, deceased, (excluding, however, the personal accounts of the members of said firm so appearing upon the books of said Carhart, Lewis & Co.,) and save, indemnify and keep harmless the said Charles A. Lewis therefrom, then this obligation to be void, otherwise to remain in full force and effect.

+------------------------------------+
                ¦[Signed]¦RICHARD L. CARHART,¦[Seal] ¦
                +--------+-------------------+-------¦
                ¦        ¦JAMES L. H. SMITH, ¦[Seal] ¦
                +--------+-------------------+-------¦
                ¦        ¦DOUGLAS R. HALE,   ¦[Seal] ¦
                +--------+-------------------+-------¦
                ¦        ¦J. N. GAGE.        ¦[Seal]”¦
                +------------------------------------+
                

Numerous special breaches of the bond were assigned, but as no question was raised upon them in argument, and none is noticed in the opinion of the court, it is unnecessary to set them out.

The defendant Gage filed two special pleas, as follows:

“And the said defendant, John N. Gage, comes and defends the wrong and injury, when, etc., and files his several plea, and says, that he ought not to be charged with the said debt by virtue of the said supposed writing obligatory, because he says that the said writing obligatory in the said declaration mentioned was obtained from this defendant by the plaintiff by fraud, covin and misrepresentation, to-wit: at the date of said bond, and in the county aforesaid, and which fraud, covin and misrepresentation this defendant avers was in the matters following, that is to say: Immediately prior to the date of the bond referred to in the said declaration, this defendant, with others as co-partners, was carrying on, in the city of Chicago and county aforesaid, a wholesale millinery business, under the name and style of Gage Bros. & Co., while the said plaintiff, at the same time, with Richard L. Carhart, the principal in said bond, was carrying on in the said city a large and profitable wholesale business in hats, caps, furs and buck goods, under the name and style of Carhart, Lewis & Co., and as successors to the firm of Carhart, Lewis & Tappan, and then and there negotiations were entered into by and between the said two existing firms, which resulted in an agreement on the part of such two firms, and of said plaintiff, by which he, the said plaintiff, was to quit and forthwith retire from the wholesale hat, cap, fur and buck goods business in said Chicago, and said Carhart was to have all the assets of said firm of Carhart, Lewis & Co., and pay all its debts, as mentioned in the said bond, and a new firm was to be formed to carry on the old business of said Carhart, Lewis & Co., which new firm was then and there formed by said Carhart, one Wm. P. Mallory, and the said firm of Gage Bros. & Co., as co-partners, and the name and style adopted for such firm was, Gage, Carhart & Mallory.

And this defendant further avers, that, while the said negotiations were pending, the said Lewis came to this defendant and requested him to sign the said bond as surety for the said Carhart, which this defendant then and there at first absolutely refused to do; whereupon the said Lewis then, and in order to induce this defendant to withdraw his refusal aforesaid, and to sign said bond, craftily and deceitfully represented to this defendant, in substance, that he, the said Lewis, had made arrangements to go into the lumber business, in Chicago, aforesaid, and that the assets of Carhart, Lewis & Co. were ample to pay all its debts, and that the liability as surety upon the said bond would therefore be only nominal, and that he, the said Lewis, would, immediately upon the defendant signing said bond, finally and absolutely quit and retire from the wholesale hat, cap, fur and buck goods business, in said Chicago, and that the said new firm of Gage, Carhart & Mallory would and should succeed to all the valuable business and good will of the said late firm of Carhart, Lewis & Tappan, and Carhart, Lewis & Co.; and the said Lewis then and there positively promised and agreed to and with this defendant, that, if this defendant would sign said bond, he, the said Lewis, would, forthwith, absolutely retire from and quit forever carrying on the wholesale hat, cap, fur and buck goods business in said Chicago, and would in no manner compete with the said new firm in such business; whereupon, relying solely upon such representations and promises, and for no other consideration whatever, this defendant did withdraw his said refusal and sign said bond; but this defendant avers that each and all of the said representations and promises proved to be false and untrue, and were made solely for the purpose, fraudulently and deceitfully, and without any consideration, to obtain this defendant's signature to the said bond; for this defendant avers, that, immediately after obtaining such signature, the said Lewis, in direct violation of his aforesaid representations and agreements, proceeded to organize and carry on, in said Chicago, a wholesale hat, cap, fur and buck goods business, under the firm and style of Charles A. Lewis & Co., and in opposition to and as a rival of the said firm of Gage, Carhart & Mallory; and to make such rivalry more successful, the said Lewis hired away from said Gage, Carhart & Mallory such employees of the late firm of Carhart, Lewis & Co. as were best acquainted with the business and customers of such late firm, and endeavored, in every way in his power, to retain for himself the business and customers of such late firm; which false, crafty and deceitful conduct on the part of him, the said Lewis, caused a great injury and loss to the said firm of Gage, Carhart, Mallory & Co., and this defendant, to-wit: the sum of $50,000, to-wit: at the place aforesaid.

Wherefore, he, the said defendant, says that the said writing obligatory in the said declaration mentioned, was and is void in law, as to this defendant, by reason of the aforesaid fraud, covin and misrepresentation, and this he is ready to verify. Wherefore he prays judgment, if he ought to be charged with said debt, by virtue of the said writing obligatory, etc. And for a further plea in this behalf, the said defendant, John N. Gage, comes and defends the wrong and injury, when, etc., and severally says, that he ought not to be charged with the said debt, by virtue of the said supposed writing obligatory, because he says that the said writing obligatory, in the said declaration mentioned, was obtained from this defendant by the plaintiff by fraud, covin and misrepresentation, to-wit: at the date of said bond, and in the county aforesaid, and which fraud, covin and misrepresentation, this defendant avers, was in the matter following, that is to say, immediately prior to the bond referred to in the said declaration, this defendant, with others as co-partners, was carrying on in the said city of Chicago, and county aforesaid, a wholesale millinery business, under the name and style of Gage Bros. & Co., while the said plaintiff, at the same time, with Richard L. Carhart, the principal in said bond, was carrying on in the said city a large and profitable wholesale business in hats, caps, furs and buck goods, under the name and style of Carhart, Lewis & Tappan, and then and there negotiations were entered into by and between the said two existing firms, which resulted in an agreement on the part of such two firms and said plaintiff, by which he, the said plaintiff, was to quit and forthwith retire from the wholesale hat, cap, fur and buck goods business in said Chicago, and the said Carhart was to have all the assets of said firm of Carhart, Lewis & Co., and pay all its debts, as mentioned in the said bond, and the new firm was to be formed to carry on the old business of said Carhart, Lewis & Co., which new firm was then and there formed by said Carhart, one Wm. P. Mallory, and the said firm of Gage Bros. & Co., as co-partners, and the name and style adopted for such new firm was Gage, Carhart & Mallory, and this defendant further avers that, while the said negotiations were pending, the said...