Gillfillan v. Farrington

• Decision Date: 31 May 1882
• Citation: 12 Ill.App. 101,12 Bradw. 101
• Parties: ALEXANDER GILLFILLANv.S. P. FARRINGTON ET AL.
• Court: United States Appellate Court of Illinois

12 Ill.App. 101

12 Bradw. 101

ALEXANDER GILLFILLAN

v.S. P. FARRINGTON ET AL.

Appellate Court of Illinois, Second District.

May Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Iroquois county; the Hon. FRANKLIN BLADES, Judge, presiding. Opinion filed December 28, 1882.

Messrs. DOYLE & MORRIS, for appellant; that the note of a third person, or a specific article, regardless of its value, received or agreed to be received in full satisfaction for a debt, operates as a discharge, cited Bunge v. Koop, 8 Am. Rep. 548; Boyd v. Hitchcock, 11 Am. Dec. 248; Page v. McCree, 19 Am. Dec. 472; Savage v. Everman, 10 Am. Rep. 678.

The failure to execute such an agreement is a fraud upon the debtor and other creditors: Mullen v. Goldsmith, 32 Am. Rep. 782; Austey v. Marden, 1 P. and B. 124; Steinman v. Magnus, 11 East, 390.

An instruction that the jury has no right to wantonly disregard the testimony of any witness, unless impeached, was proper: Robertson v. Dodge, 28 Ill. 161; Robinson v. Magarity, 28 Ill. 423.

An instruction that a mere agreement to accept will not bar the suit, unless actually accepted, was improper: Mullen v. Goldsmith, 32 Am. Rep. 781.

Mr. GEO. B. JOINER, for appellees; that the matter received in satisfaction must be given by the debtor and not by a stranger, cited 1 Smith's Leading Cases, 325; Clow v. Jost, 6 John. 37; Stark v. Thompson, 3 Monroe, 296.

The plea must aver that the matter was accepted in satisfaction: Sinard v. Patterson, 3 Blackf. 354; Maze v. Miller, 1 Wash. C. C. 328; Russell v. Lytell, 6 Wend. 390; Hawley v. Foote, 19 Wend. 516; Hefter v. Cahn, 73 Ill. 296.

As to filing many copies of the same plea: Hawlet v. Mills, 22 Ill. 341; Adams v. Smith, 58 Ill. 417; Tush v. Newell, 62 Ill. 196; State v. Max, 15 Mo. 153.

As to instructions: Mosher v. Kitchel, 87 Ill. 19; State v. Gates, 20 Mo. 400.

PLEASANTS, J.

This was an action of assumpsit brought by appellees upon the common counts for goods sold and delivered. Special pleas set up by way of defense: first, an agreement by divers of the creditors, including plaintiffs, with each other and with the defendant, who was then in failing circumstances, to accept in satisfaction of their respective demands the promissory notes of a responsible party, for sixty per cent. of the amount thereof in thirty, sixty and ninety days--the tender of such notes according to the agreement--their acceptance by the other creditors so agreeing, and their refusal by the plaintiffs; and second, an agreement by the plaintiffs so to accept such notes of John Fairman, and their tender and refusal.

In each it was averred that ever since such refusal said notes have been held subject to plaintiffs' order, of which they had notice, and are now brought into court.

The replications traversed only the alleged agreement on the part of the plaintiffs, upon which issue was joined and a trial had, resulting in a verdict and judgment in favor of plaintiffs for the full amount of their claim.

Defendant was a merchant at Watseka. On December 31, 1880, his stock of goods and other assets, invoicing considerably less than the amount of his debts, were levied on by virtue of several executions, and he thereupon made an assignment under the provision of the statute. January 12, 1881, Doyle & Lott, attorneys at that place, mailed to each of the unsecured commercial creditors a statement of the assets and liabilities of the defendant, of the liens which had attached, and of the offer of John Fairman, a responsible friend, to pay them all “sixty per cent. of their claims in full in thirty, sixty and ninety days,” concluding as follows: “We think this the best that can be done. Will you take it, and do you wish us to represent you in such settlement? Answer.”

By the 17th all had signified their assent, excepting the firm of Field & Leiter and the plaintiffs, from whom no answer had been received.

Doyle & Lott then telegraphed Henry W. King & Co., who had assented, to see those parties and urge their immediate decision. On the 18th, Elliott Reed, of that firm, showed to plaintiff Farrington the telegrams referred to, represented that the proposition was to give Fairman's notes of the tenor above stated in settlement--that it would be open only a day or two longer--that a major part of the creditors had signified their willingness to accept it, and that the concurrence of plaintiffs was earnestly desired; and reported the result by a dispatch of the same date as follows: “Farrington accepts, Leiter declines. Advise going ahead without them. Have written.”

This was communicated to Fairman, who thereupon, on the 19th, paid off the executions, delivered his notes to Doyle & Lott for transmission to the payees respectively, procured the discharge of the assignee, took possession of the goods for the defendant and proceeded to make arrangements which were afterward completed for a partnership in the business with him.

Plaintiffs received the notes so made to them on the 20th, but returned them to Doyle & Lott on the 23rd or 24th, and on the 31st commenced this suit. The others accepted theirs, and discharged the defendant before notice of plaintiffs' refusal was received.

So far there is no dispute, nor is there any pretense of fraud, misrepresentation or concealment on the part of Fairman or the defendants. But did Farrington in fact “accept” as reported?

Reed testified that Farrington said: “As their account was small and as he did not want to stand out in the matter, he would instruct his attorney at Watseka to make the settlement as per telegram at my request.”

Farrington says he told him that “their claim was entirely in the hands of Geo. B. Joiner and he alone could sign any paper for a compromise,” and this is all that appears in his deposition on the subject of what he said on that occasion as to the acceptance or rejection of the proposition, although he denies that he ever agreed to take for their claim less than the full amount of it.

But in a letter to Joiner of January 21st, acknowledging the receipt of Fairman's notes from Doyle & Lott, “with a polite request to send them $3 for their trouble,” he says: “We told Mr. Reed that we would write to you with regard to the matter and should advise signing, of course, in accordance with your advice. This is the only intimation we have given any one except yourself, so we have no hesitation in withdrawing. If they had acted the gentlemanly part we should have signed. If you have already signed on receipt of this it is all right, or if you think it decidedly best we shall not object, but we are sure the whole can be made.”

This, we think, tends to show that he knew Reed understood him as accepting the proposition submitted without reference to the judgment or advice of his attorney, and that for the supposed offense of Doyle & Lott, whom he assumed (as appears from another letter) to be attorneys for the defendant and therefore acting unprofessionally in asking a fee from him also, as well as because he had not committed himself directly either to the defendant, or to Fairman, or to Doyle & Lott, he now attempts to withdraw that acceptance. What else than such acceptance could be here meant? If he had gone no further than to say that the matter was left entirely to Joiner's discretion, as stated in his deposition, there was nothing else to withdraw or to withdraw from, and he did not withdraw that, but by this letter in terms adhered to and continued it. And why should he promise to write to Joiner if he was to say nothing more nor less than he had already written?

In another letter to the same, of the 26th, he writes: “The facts are, when King & Co. called on us, we stated to them that the claim was in your hands and left to your discretion. But not to stand in the way of settlement we would advise you to accept the compromise. But this was understood to be in accordance with all our instructions to you that you would act on your own judgment. We believe D. & L. attempted sharp play,” etc.

These letters alike admit a promise at least to “advise” his attorney to accept. They do not import that the qualification or condition now claimed was expressed to Reed, but imply that it was not. They are not in harmony with the statement in the deposition, which shows no promise to advise his attorney to accept, and puts this controlling discretion of his attorney not as ““understood” or a matter “of course,” but as clearly expressed.

They therefore did tend, and were admitted by the court only as tending to contradict Farrington and corroborate Reed, whose testimony respectively, together with these letters, comprised the whole of the evidence...