Martin v. Stubbings

• Decision Date: 15 November 1888
• Citation: 126 Ill. 387,18 N.E. 657
• Parties: MARTIN v. STUBBINGS et al. MARTIN et al. v. STUBBINGS.
• Court: Illinois Supreme Court

126 Ill. 387

18 N.E. 657

MARTIN

v.STUBBINGS et al.

MARTIN et al.

v.STUBBINGS.

Supreme Court of Illinois.

November 15, 1888.

Error to appellate court, First district.

Bill of interpleader by the Knights Templars' & Masons' Life Indemnity Company against Cornelia Martin and Wilson H. Stubbings to determine to whom the amount due upon the certificate of membership in it of Neal K. Martin, deceased, belongs; and bill for specific performance by Stubbings against the Supreme Council of the Royal League and Mrs. Martin to require the Supreme Council of the Royal League to levy an assessment to pay a certificate of membership issued by it to Neal K. Martin, and, when collected, to pay the amount, or a portion of it, to complainant. Prior to January 1, 1886, Martin and Stubbings were copartners, under articles which were to expire in 1888, unless dissolved on three months' notice; and it was found on examination of the books that on that day there were due from Martin to Stubbings $3,411.66, the amount drawn by Martin in excess of his share of the profits, in which alone he was interested. Stubbings thereupon announced his intention of terminating the partnership; but on April 16, 1886, new articles were entered into, and Martin and wife signed a judgment collateral note in favor of Stubbings for the amount of the overdraft, and also, for further security, assigned to Stubbings the benefit certificates. Martin having died, these suits were brought. In the interpleader suit, $3,281.87, the balance after payment of costs, were decreed to Stubbings. And in the other suit, the Supreme Council of the Royal League, having collected $1,023.28, was directed to pay to Stubbings the balance remaining due to him, amounting to $474.76, and the balance to Mrs. Martin. The decrees were affirmed in the appellate court, and Mrs. Martin brings error. Starr & C. St. c. 110, par. 91, provides that in all cases where the sum in the controversy exceeds $1,000, exclusive of costs, ‘which shall be heard in any of the appellate courts upon errors assigned, if the judgment of the appellate court be that the order, judgment, or decree of the court below be affirmed, or if final judgment or decree be rendered therein in the appellate court, of if the judgment, order, or decree of the appellate court be such that no further proceedings can be had in the court below, except to carry into effect the mandate of the appellate court,’ the cause may be removed to the supreme court. Chapter 37, par. 28, provides that ‘in all cases determined in said appellate courts, in actions ex contractu, wherein the amount involved is less than one thousand dollars, exclusive of costs; and in all cases sounding in damages wherein the judgment of the court below is less than one thousand dollars, exclusive of costs, and the judgment is affirmed or otherwise finally disposed of in the appellate court, * * * no appeal shall lie or writ of error be prosecuted therefrom. * * * In all other cases appeals shall lie, and writs of error may be prosecuted, from the final judgments, orders, or decrees of the appellate courts to the supreme court: provided, also, that in any case a majority of the judges of the appellate court shall be of opinion that a case decided by them involving a less sum than one thousand dollars, exclusive of costs, also involves questions of lwa of such importance * * * as that it costs, also involves questions of law court, they may in such cases grant appeals and writs of error to the supreme court. * * *’Millard R. Powers

and Robert S. Iles, for plaintiff in error.

Hoyne & Follansbee, for defendant in error.

BAILEY, J.

The amount involved in the case of Stubbings v. The Supreme Council of the Royal League and Cornelia Martin is only $474.76. It is true the amount found due from the Supreme Council of the Royal League on the membership certificate of Neal K. Martin, deceased, was $1,023.28; but of that sum $548.52 was ordered to be paid and was in fact paid to Cornelia Martin, and only $474.76 was ordered to be paid to Stubbings. The Supreme Council of the Royal League is not complaining, the writ of error having been sued out by Cornelia Martin alone. As between her and Stubbings, the only parties to the present controversy, only $474.76, or less than $1,000, is involved. There is no certificate by the judges of the appellate court that the case involves questions of law of such importance, either on account of principal or collateral interests, that it should be passed upon by this court. It follows that in that case the writ of error was improvidently issued, and it must therefore be dismissed.

In the other case-the one involving the certificate of membership in the Knights Templars' & Masons' Life Indemnity Company-Mrs. Martin bases her right, as against Stubbings, to receive the money payable on said certificate, on two grounds: First, that there was no sufficient legal consideration to support either the note executed by her and her husband to Stubbings, or the assignment to him of the certificate of membership; and, second, that during Martin's life-time said certificate was not assignable so as to vest in the assignee the right to receive the money payable thereon at Martin's death. In support of the first of these propositions, counsel have sought to avail themselves of the principles discussed and adopted by the appellate court when the case was before that court on motion to vacate the judgment against Mrs. Martin entered on said note by confession. See Martin v. Stubbings, 20 Bradw. 381. In that case, it will be observed, the decision was based upon the facts established by certain ex parte affidavits, which, for the purpose of the decision, the court was compelled to take as true. The facts thus shown were, among others, that at the time the note was given the partnership had not been dissolved, but continued after its execution, and was dissolved only by the subsequent death of Martin; that no accounting took place, and no balance was struck, in Martin's life-time; that the consideration of the note was an estimated balance, which was not arrived at by any accounting, and was not regarded or treated by the parties as the true balance, but was subject to correction when an accounting should be had and a balance ascertained. A state of facts entirely different, and calling for an application of entirely different rules of law, was presented by the pleadings and proofs at the hearing in the present case. That the partnership was in fact dissolved at the time the note was given is now placed beyond the possibility of question by the express covenant of the parties in their new articles of copartnership that such was the case. It also appears without contradiction that a most careful and thorough accounting was had in respect to all the business of the firm down to January 1, 1886, which showed that Martin, who contributed nothing to the capital of the firm, and whose interest was only in the profits, had drawn out his entire share of the profits, and the sum of $3,411.66 in addition thereto. Had the firm been dissolved January 1st, Martin would, according to the accounting, have been indebted to Stubbings in the sum above mentioned. The evidence fails to show whether or to what extent the accounts between the parties were affected by the firm business transacted between January 1st and April 16th, the date of the new partnership agreement, but the presumption may be indulged in that very little, if any, business was transacted during that interval. However that may be, it was clearly competent for the parties, on dissolving their copartnership, to agree upon the balance due, if they saw fit to do so, without a new accounting. It was competent for them to adopt the balance of January 1st as the true one, and disregard subsequent transactions, and this they are clearly shown to have done. The firm being dissolved, and the amount due from Martin to Stubbings being ascertained and agreed upon, such balance constituted an individual indebtedness from Martin to Stubbings which was a sufficient consideration both for the note and for the assignment of the certificates of membership. But this is not all. The execution of the new articles of copartnership was a consideration sufficient to support Mrs. Martin's execution of the note as surety. It should be observed that the note recites no particular consideration, and it is therefore admissible, in order to establish the liability of any of the parties to it, to resort to extrinsic evidence to show a consideration. See Martin v. Stubbings, 27 Bradw. --, authorities there cited. The execution of the note by Martin and wife, and the deposit with Stubbings of Martin's certificates of membership as collateral security, was the inducement to Stubbings to consent to a new copartnership, instead of terminating his business relations with Martin peremptorilyand at once. There can be no doubt that the note and collaterals were given to obtain a renewal of the partnership relation, and such renewal, coupled with the existing and admitted indebtedness from Martin to Stubbings, was a sufficient consideration for Mrs. Martin's signature and for the deposit of the collaterals.

The question remains whether the certificate of membership in the Knights Templars' &...