Morris v. Tillson

• Decision Date: 31 January 1876
• Citation: 81 Ill. 607,1876 WL 10056
• Parties: ISAAC N. MORRISv.ROBERT TILLSON et al.
• Court: Illinois Supreme Court

81 Ill. 607

1876 WL 10056 (Ill.)

ISAAC N. MORRIS

v.ROBERT TILLSON et al.

Supreme Court of Illinois.

January Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Adams county; the Hon. JOSEPH SIBLEY, Judge, presiding.

Mr. O. H. BROWNING, and Mr. ISAAC N. MORRIS, for the appellant.

Messrs. SKINNER & MARSH, for the appellees.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Bill was filed in the court below, by Robert Tillson, against Isaac N. Morris, Edgar R. Morris, Maitland Boone and others, to enjoin certain actions of replevin, and to redeem from a chattel mortgage executed by Boone, on the furniture, etc., in the Quincy House, in the city of Quincy, to Isaac N. Morris, bearing date December 30, 1869.

Isaac N. and Edgar R. Morris filed their joint and several answer to the bill; and Isaac N. Morris also filed his cross-bill, praying that Boone be required to account, etc., to which answer was also filed.

The decree of the court below being unsatisfactory to Isaac N. Morris, the record comes before us on his appeal.

The record is exceedingly voluminous, and the facts somewhat complicated, but, it is believed, the following statement will be sufficient for the purposes of the questions we deem it necessary to discuss.

By three separate leases, all bearing date November 1, 1867, Isaac N. Morris leased to Maitland Boone and Benjamin A. Watson certain rooms in the building known as the Quincy House, for hotel purposes, billiard room, etc., for the term of five years then next ensuing. The aggregate amount of rent to be paid by Boone and Watson on the leases was $6000 per annum, payable in monthly installments; and they were, also, within one year, to make improvements and repairs to the amount of $5000, to consist, in part, of a brick building of the same height as the Quincy House, and a veranda along the entire north front of the house.

Boone and Watson had been in possession some time before the date of the lease, and they continued in possession after its execution, running a hotel, etc., as partners, until in 1868, when Watson sold out to Boone and retired from the business, with the consent of Morris, Boone assuming to pay Morris all rent in arrear and ten per cent interest thereon.

After this, a short time, Boone and Morris, by agreement, modified the leases so that Morris was, as soon as practicable, to lay a new and sufficient pavement along the whole north front of the premises; reset the stone steps in front of the house, and paint the outside of the house in a proper manner; and Boone was to erect the addition specified in the lease, at such time during his term as he might elect; and, whenever he should erect the building, Morris should be responsible for, and pay, the sum of $1500 towards the expenses thereof, and Boone was permitted to occupy a certain described room free of rent. Morris agreed to not rent the cellar or basement under the north-west corner of the house, for saloon purposes; and Boone agreed to release Morris from all claims for damages sustained by Watson and Boone, by reason of the excavation of a cellar under the north-west part of the building.

In October, 1868, Morris, at the request, as he says, of Boone, entered into a contract with one Roux for the erection of the additional building, who completed the work sometime afterwards. This, as shown by a separate undertaking of Boone, of date October 4, 1868, was to cost $4020, and, payment having been made by Morris, Boone obligated himself to give Morris his notes therefor, less $1500, which Morris was to pay, himself.

Morris constituted Nehemiah Bushnell his attorney in fact, in November, 1869, empowering him to collect the rent due him from Boone, and on the 30th of that month left Quincy for Washington City, and did not return until September, 1870.

On the 29th day of December, 1869, Bushnell, as attorney in fact for Morris, issued a distress warrant on each of the three leases for sums amounting, in the whole, to $5999.88, for rent then claimed to be due and unpaid, and delivered them to his bailiff, who, on the same day, levied on the furniture and other personal property in the Quincy House belonging to Boone.

This led to negotiations between Bushnell, acting as attorney in fact for Morris, and Edgar R. Morris, also acting as attorney for Morris, and Boone, which were protracted for several days, but finally, on the 31st of December, resulted in a settlement. Tillson was present during a part of the negotiations, and, to some extent, participated therein. A new lease, bearing date December 30, 1869, excluding some of the property embraced in the old leases and including other property not embraced therein, for the term of three years from the first day of January, 1870, was executed by Bushnell and Edgar R. Morris, for and on behalf of Isaac N. Morris, and delivered to Boone. Boone was to pay $6093 in one year, $6000 in two years, and $6000 in three years, to be paid in monthly installments at the Merchants' and Farmers' National Bank, in the city of Quincy, payment of which was to be secured by chattel mortgage, giving Morris a first lien on all the property of Boone.

On the 8th of October, 1867, Boone and Watson had executed a chattel mortgage on all their personal property to Tillson and William W. Watson, to secure the payment of $10,000 to the First National Bank of Quincy, for which the mortgagees were the sureties of the mortgagors. This mortgage had expired, by its own limitation, when the distress warrants were issued; and judgment had been obtained by the bank for the amount of the indebtedness against all the parties to the mortgage.

Boone had executed and delivered a chattel mortgage to Bushnell for Isaac N. Morris, pursuant to the negotiation before mentioned, and when Bushnell went to the recorder's office to have it placed on record, he found that there had also been filed for record, a short time previously, another chattel mortgage, on the same property, from Boone to Tillson and William A. Watson, to secure them against the judgment in favor of the bank. Bushnell thereupon refused to consummate the negotiations with Boone until this mortgage was released. Tillson was sent for and executed an instrument in writing, releasing the mortgage, in favor of Morris, and the mortgage to Morris was then placed on record. The old leases were canceled, and Bushnell and Edgar R. Morris, in the name of I. N. Morris, executed and delivered to Boone a receipt for all rents, etc., due to that date, and the property levied upon was released.

There is a dispute between the parties whether, in this settlement, the amounts agreed to be paid by Boone, namely, $6093 in one year, $6000 in two years, and $6000 in three years, were solely in consideration of rent thereafter to accrue, or whether they included, also, rent past due, payment of which was thus postponed. Boone claims they were solely for rent to accrue. Morris claims that, in the negotiations, it was agreed there was then due him $5000 on account of rent; that he had paid out, in erecting the additional building, the sum of $1093, which Boone was, by virtue of their agreement of the 4th of October, 1868, to repay him, and that the sum agreed upon for the rent to accrue was $4000 per annum, and that the back rent, $5000, and the amount due by the contract of October 8, 1868, $1093, were added to the total rent for three years, $12,000, making the total $18,093, and its payment was distributed as before stated.

Morris denies that Bushnell and Edgar R. Morris had any authority to make the new lease, or release Boone from the payment of any indebtedness which he then owed. Boone claims that, even conceding the want of authority in Bushnell and Edgar R. Morris, Isaac N. Morris subsequently ratified all they agreed to.

Sometime about the last of January, or the first of February, 1870, Boone sold a one-half interest in the furniture, etc., of the Quincy House, to George N. Blossom, for $9500, of which he paid $2000, only; and, in the following December, Blossom sold his interest, estimated then at $4000, to Robert Tillson, who also guaranteed him against harm on account of the debts contracted by the firm of Boone & Blossom. Morris never consented that Blossom should have an interest in the leases; he, however, remained in the hotel, during the period of his ownership of the interest in the furniture, as partner of Boone, and, afterwards, as agent for Boone, until Morris replevied the property from Boone.

After Morris returned from Washington, and sometime in September, 1870, he and Boone entered into an agreement to arbitrate certain matters of account, for rent and other things, which Morris claimed were not included in the negotiations between Bushnell and Boone, in December, 1869. Boone, subsequently, and before an award was made, gave notice that he withdrew his consent to the agreement. The arbitrators, nevertheless, proceeded and made an award in favor of Morris, to which we shall again refer.

On the 3d of January, 1871, Boone being, as Morris claimed, in default in the payment of rent, Morris brought replevin for the property described in the chattel mortgage to him from Boone, dated December 30, 1869.

Morris sold, on the 26th of January, 1871, to Edgar R. Morris, as it is claimed, at private sale, for $10,000, on time, and took his individual notes to secure the payment.

When the writ was levied, Boone was absent at Washington. It was then agreed between Morris, by his attorneys, Tillson acting for himself and Boone, and the attorneys of the National Bank having the before mentioned judgment against Boone, Tillson and the Watsons, that proceedings on the writ should be delayed until the 10th of that month, without prejudice to Morris or the sheriff. On the 9th of the month, Boone, having returned to Quincy, it is claimed, sold the property to Tillson. On the 28th of the same month, Tillson replevied the property from Morris and the...