Hayward v. Gunn

• Decision Date: 30 June 1876
• Citation: 82 Ill. 385,1876 WL 10217
• Parties: HORACE HAYWARDv.CAROLINE GUNN.
• Court: Illinois Supreme Court

82 Ill. 385

1876 WL 10217 (Ill.)

HORACE HAYWARD

v.CAROLINE GUNN.

Supreme Court of Illinois.

June Term, 1876.

APPEAL from the Circuit Court of Richland county; the Hon. J. C. ALLEN, Judge, presiding.

Messrs. CANBY & EKEY, for the appellant.

Messrs. WILSON & HUTCHINSON, for the appellee. Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Appellee brought assumpsit against appellant, as surviving partner of the firm of Hayward & Kitchell, attorneys at law, for certain moneys belonging to her which she claimed they had received and failed to account for.

The declaration contains only the common consolidated money counts. Appellant pleaded, first, non assumpsit; second, that the several causes of action did not accrue within five years next before the commencement of the suit; and third, payment and set off. Appellee joined issue on the first plea, traversed the third, and replied, specially, to the second plea, first, that the several causes of action did accrue within five years; second, that the suit was to recover moneys, of which Hayward & Kitchell, as her attorneys, had been entrusted with the collection and custody; third, that suit was brought to recover on a contract in writing; fourth, the coverture of appellee; and, fifth that appellant fraudulently withheld and concealed from appellee knowledge of the several causes of action. Appellant joined issue on the replication to the third plea and the first replication to the second plea, and traversed the other replications to the second plea, upon which appellee joined issue.

The jury, under the instructions of the court, returned a verdict in favor of appellee for $584. Motion for a new trial was made by appellant, whereupon appellee remitted $184 of the amount found by the verdict of the jury, and the court then overruled the motion and gave judgment for appellee for $400.

The facts proved on the trial, so far as they are material to an understanding of the questions upon which we are required to pass, are, substantially, these:

One Samuel H. Gunn, the husband of appellee, being the owner of certain lots in Olney, and, at the same time, largely indebted to the firm of Cummins. Seaman & Co., of New York, had executed to them a mortgage on the lots to secure the payment of his indebtedness. The mortgage had been foreclosed and the lots sold, and bid in by Cummins, Seaman & Co., who held certificates of purchase therefor. Appellee was desirous of purchasing and obtaining title in herself to a portion of these lots, and, to enable her to gratify that desire, the firm of Gunn Brothers (which did not include her husband) agreed to give her $1500 for a claim she held in her own right on certain other lots. The legal business relating to the collection of the indebtedness of Samuel H. Gunn to Cummins, Seaman & Co., including the foreclosure, sale, etc., was entrusted by them to the law firm of Hayward & Kitchell. After some negotiation, it was agreed between Cummins. Seaman & Co. and appellee, that they would, upon her paying them $1000, and releasing her claim to dower in the other lots for which they held certificates of purchase, assign and deliver to her the certificates of purchase to six designated lots. It is also claimed by appellant that appellee was, in addition to paying the $1000 to Cummins, Seaman & Co., to pay all costs and attorneys' fees incurred by them in collecting or attempting to collect claims against Samuel II. Gunn. Appellee concedes that she was to pay, in addition to the $1000, the costs, and attorneys' fees incurred in the foreclosure of the mortgage, but she denies that she was to pay any other costs. Cummins, Seaman & Co. placed in the hands of Hayward & Kitchell the certificates of purchase intended for appellee, to be held by them until she complied with the agreement, and then delivered to her. Appellee sold to Gunn Brothers the lots they agreed to buy of her for $1500, and they secured the payment of the same by their three promissory notes for $500 each. She placed these notes in the hands of Hayward & Kitchell with the understanding, as she claims, that they should collect them when due, and, after paying the amount of $1000 to Cummins, Seaman & Co. and the costs in the foreclosure suit, account to her for the balance; but appellant claims that one of the notes was assigned by her to Hayward & Kitchell for the payment of the costs, attorneys' fees, etc., which Cummins, Seaman & Co. had incurred in their efforts to collect from Samuel H. Gunn, and that the proceeds of the other two notes were to be applied, when collected, in payment of the $1000, and accruing interest, to Cummins, Seaman & Co. The notes were collected, the $1000, and some accruing interest, paid to Cummins, Seaman & Co., and appellee relinquished her dower in the lots agreed upon to Cummins, Seaman & Co. and received the certificates of purchase to those she was to have.

It appears this all occurred as early as May, 1868, and this suit was not commenced until October 30, 1874. Appellee was divorced from her husband, as the record shows she testified, in 1869; but it is claimed, in point of fact, it was in 1871. In the view we take of the case, however, this is unimportant.

It appears, from the bill of exceptions, a receipt was given by Hayward & Kitchell for two of the notes, but what its language was does not appear. As to the third note, there does not appear to have been any writing whatever between the parties.

Appellee's claim is for the balance on the proceeds of the notes (after the payments authorized by her were made) in the hands of appellant, as surviving partner of Hayward & Kitchell.

The court, at the instance of appellee, gave to the jury several instructions to which exception is taken by the appellant. The first is as follows:

“If the jury find from the evidence that the defendant held in his hands funds which were placed there to pay certain claims, the overplus (if any) to be returned to the plaintiff, and if you further find that the defendant still has such funds in his hands, you will find for the plaintiff, and assess her damages at such sum as you find is justly her due. Such facts, if proven, will take a case out of the Statute of Limitations, and authorize a recovery, notwithstanding the lapse of time.”

Appellee contends that the facts contemplated by this instruction, and upon the hypothesis of proof of which it was given, create the relation of trustees and cestui que trust between appellee and Hayward & Kitchell, and, therefore, the Statute of Limitations can not be interposed as a bar to her claim. This, in our opinion, is a misapprehension of the law applicable to the evidence on this point. “To exempt a...