Gerard v. Bates

• Citation: 124 Ill. 150,16 N.E. 258
• Parties: GERARD v. BATES.
• Decision Date: 28 March 1888
• Court: Supreme Court of Illinois

124 Ill. 150

16 N.E. 258

GERARD

v.BATES.

Supreme Court of Illinois.

March 28, 1888.

Appeal from appellate court, Third district.

Suit was begun by the appellee, Erastus W. Bates, against the defendants, Charles F. Gerard and Isaac Wert, for an accounting and division of the partnership property owned by the defendants, one James H. Danley and complainant, Bates, who had purchased a part of Danley's interest. Decree was rendered, dividing the property, and the defendant Gerard alone appeals.

Beach & Hodnett, for appellant.

E. Lynch and Blinn & Hoblit, for appellee.

SHELDON, C. J.

On April 21, 1885, Charles F. Gerard and Isaac Wert were the owners of a livery-stable stock and business in Lincoln, in this state, in partnership, doing business under the firm name of Wert & Co., Gerard's interest being three-fourths and Wert's one-fourth. On that day Gerard sold to one James H. Danley an undivided half interest in the livery stock of Wert & Co. for a half section of land in Nebraska, taken at the valuation of $3,200, Danley guarantying that the actual cash value of the land would be, in 18 months thereafter, $3,200, and that if not of that value, he agreed to pay to Gerard the difference between such sum and the value then, out of said livery stock. On the same date, and as a part of the same transaction, Gerard, Danley, and Wert entered into a partnership to conduct said livery business, and did carry on the same for a while. On June 17, 1885, two executions against Danley for $621.25 and costs, and $148.56 and costs, respectively, issued on judgments against him individually, in favor of one Harts, were levied upon the interest of Danley in certain enumerated articles of personal property of the partnership, in the livery-stable. The property so levied upon was duly sold, and the appellee, Bates, who in the mean time had purchased the judgments from Harts, became the purchaser at the sale for $769.91. Bates, on August 21, 1885, filed his bill of complaint herein against Wert and Gerard, alleging that he became, by said purchase, the absolute owner of an undivided one-half interest in said property; that Wert and Gerard refused to recognize his ownership, and praying for an account and the appointment of a receiver.

The defendants, by their answer, deny that the complainant is the absolute owner of an undivided one-half interest in the property, set up the contract with Danley as to the land, and aver that Danley's interest in the property could not be ascertained until 18 months after April 21, 1885, and that said time had not expired. A receiver was appointed who made sale of the property of the firm. The net amount of the assets of the firm were found to be $1,780.71, which the decree of the court divided as follows: To complainant, Bates, $890.35; to the defendant, Gerard, $445.18; and the same to the defendant Wert. No costs were adjudged against Bates, but they were ordered to be paid three-fourths by Gerard and one-fourth by Wert. It appeared from the evidence that on the first day of October, 1886, the Nebraska land was worth from four to five dollars per acre, and that Gerard was still the owner. The decree was affirmed by the appellate court for the Third district, and the defendant Gerard alone appeals to this court.

The decree is claimed to be erroneous in two particulars: one, in that the decree allows Bates a half of certain assets of the partnership that were not levied upon, and sold under the executions; and the other, the disallowance of Gerard's claim against Danley's interest in the event that the value of the Nebraska land should not be $3,200 at the expiration of 18 months from April 21, 1885. The appellate court disposed of this last objection on the ground that Gerard, by the representations he had made to Bates before his purchase as to the value of Danley's interest, and the encouragement he had given him to buy the judgments, was estopped, as against...