Hammer v. Johnson

• Decision Date: 30 April 1867
• Citation: 44 Ill. 192,1867 WL 5127
• Parties: GEORGE HAMMERv.ASHBURY F. JOHNSON et al.
• Court: Illinois Supreme Court

44 Ill. 192

1867 WL 5127 (Ill.)

GEORGE HAMMER

v.ASHBURY F. JOHNSON et al.

Supreme Court of Illinois.

April Term, 1867.

WRIT OF ERROR to the Circuit Court of Peoria county; the Hon. AMOS L. MERRIMAN, Judge, presiding.

This was a bill in chancery, filed in the court below by the plaintiff in error against the defendant in error and others, to compel the defendant Johnson to pay certain notes made by one Chambers, and which had been received by plaintiff in part payment for the sale to Chambers of plaintiff's undivided half interest in a certain mill, the other half of which was owned by Johnson, who subsequently purchased Chambers' interest. The further facts in the case are given in the opinion.

Messrs. MCCULLOCH & TAGGART, for the plaintiff in error.

Messrs. COOPER & MOSS, for the defendants in error. Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

Hammer, being the owner of an undivided half of a mill, sold to one Chambers for $2,000, receiving $800 in money and the notes of Chambers for $1,200, and giving a bond for a deed to be made on payment. Chambers assigned the bond to Johnson, who had become the owner of the other undivided half. The mill was burned soon after the assignment, and this bill is filed to compel Johnson to pay the notes given by Chambers. The oath to the answer is not waived, and John son answers, denying that, in purchasing from Chambers, he agreed to pay his notes, or that their payment was any part of the consideration for the assignment. The assignment itself is a simple transfer of Chambers' interest in the bond, and makes no allusion to the unpaid notes. There is no proof to contradict, in this respect, the allegations of the answer. On this point, then, the case is within the principle of Comstock v. Hill, 37 Ill. 542, where it was held that an assignee, in a case of this character, incurs no personal liability, unless he expressly assumes the payment of the outstanding lien, or its amount is allowed in the purchase money, in which event the law would imply a promise.

Neither can Johnson be compelled to account to Hammer for any portion of the insurance money received by him, amounting to $1,500. It seems to have been received on a policy procured by himself to protect his own interest, and the amount can not have covered his own loss.

On both the foregoing points the Circuit Court ruled correctly, but there is one particular in which the complainant is entitled to relief. After the fire, he...