MacDonald v. Crosby

• Decision Date: 24 October 1901
• Citation: 192 Ill. 283,61 N.E. 505
• Parties: MacDONALD et al. v. CROSBY.
• Court: Illinois Supreme Court

192 Ill. 283

61 N.E. 505

MacDONALD et al.

v.CROSBY.

Supreme Court of Illinois.

Oct. 24, 1901.

Error to appellate court, First district.

Action by Marjorie H. Crosby against Charles A. MacDonald and others. From a judgment of the appellate court affirming a judgment in plaintiff's favor, defendants bring error. Affirmed.

C. E. Kremer, for plaintiffs in error.

Wm. E. Hughes, for defendant in error.

WILKIN, C. J.

Marjorie H. Crosby, as plaintiff, began this suit in assumpsit in the superior court of Cook county, against plaintiffs in error, to recover a sum of money due to her from them, as surviving partners of the firm of Crosby, MacDonald & Co. Her cause of action was stated in several ways in her declaration, the substance being-First, that she loaned the firm $14,000 on December 2, 1891, due in three years, and that the defendants failed to pay her; second, that on that date she mortgaged certain property belonging to her, and thus raised the sum of $14,000, which she paid to the said firm in consideration that they would pay off the said mortgage when due, and that they failed to make such payment, and she was compelled to do so. The third court is substantially the same as the second. The declaration also contained the common counts. Defendants pleaded-First, non assumpsit; second and third, that the plaintiff's cause of action is barred by the statute of frauds, it being based upon an agreement not to be performed within one year of the making thereof, and is not evidenced by any note or memorandum signed as required by the statute, and that the said promise, if one was made, was to answer for the debt of Mr. Crosby. A demurrer was sustained to the special pleas, and defendants elected to stand by them. The cause was tried before the court without a jury, resulting in a finding and judgment for the plaintiff for $17,741.55. Defendants appealed to the appellate court for the First district, where the judgment below was affirmed, and they now bring the cause to this court, as plaintiffs in error, to reverse the judgments below.

By some arrangement between counsel, without the approval of the court, two sets of briefs and arguments have been filed in this case. The result has been, not only to confuse the argument of the case, but to impose additional labor upon the court. We have, however, given careful consideration to both arguments, and have reached the conclusion that no reversible error was committed by the trial court. It was not denied that Mrs. Crosby borrowed the money and gave her note and mortgage, as alleged, and that the firm of Crosby, MacDonald & Co. received the money; but the defendants denied that the money was borrowed by her at their request or that they promised to pay the same or to indemnify her, their contention being that her husband, Thomas G. Crosby, then a member of the firm, had overdrawn his account at that time in an amount equal to or in excess of the amount so received by the firm, and that the amount so borrowed by his wife was paid to him, and by him to the firm, to make up his overdraft, and was credited to him in his account with the firm. In other words, the real question on the trial was whether she borrowed the money for and delivered it to the firm upon their request and promise to repay it, or whether she borrowed it for her husband and delivered it to him. This question of fact was fully contested both in the superior and appellate courts, and it was found that she loaned the money, not to her husband individually, but to the firm; and, unless a wrong conclusion was reached because of an erroneous decision upon some question of law, the judgment is conclusive.

It is first insisted that the trial court erred in not holding that a letter of December 2, 1891, signed by the firm, addressed to Mrs. Crosby, contained the whole contractof the parties. At the close of the evidence defendants offered to the court a proposition to be held as the law of the case, as follows: (6) ‘That said letter is the only agreement or promise on the part of the said firm of Crosby, MacDonald & Co., or the surviving partners thereof, tending to show any promise to pay to the plaintiff the said sum of $14,000 borrowed from her by the said Thomas G. Crosby, and that said letter was not and is not a promise by the said Crosby, MacDonald & Co., or the survivors thereof, to pay to the said plaintiff the said sum of $14,000 as an indebtedness of said firm, and, therefore, the plaintiff cannot recover said sum against the said defendants, or either of them.’ The letter is as follows: ‘Chicago, Dec. 2, 1891. Mrs. Marjorie H. Crosby, City-Dear Madam: Regarding the mortgage of $14,000 on house and land at Lake View, the proceeds of which are to go into the hands of this firm to Capt. Crosby's credit, we beg to say that it is understood and agreed that Capt. Crosby's interest as a member of the firm remains unaffected by his illness; and he also wishes us to say to you that even in case of his death his interest shall remain until the above mortgage be paid off. Yours, faithfully, Crosby, MacDonald & Co.’ This letter, when considered in connection with other evidence offered on behalf of plaintiff, does not bear the construction sought to be placed upon it by plaintiffs in error, nor does it purport to be the whole contract under which Mrs. Crosby claims to have made the loan, and this...