Mulholland v. Bartlett

• Decision Date: 30 September 1874
• Citation: 74 Ill. 58,1874 WL 9070
• Parties: HENRY MULHOLLANDv.MOSES BARTLETT.
• Court: Illinois Supreme Court

74 Ill. 58

1874 WL 9070 (Ill.)

HENRY MULHOLLAND

v.MOSES BARTLETT.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Winnebago county; the Hon. WILLIAM BROWN, Judge, presiding.

This was an action of assumpsit, brought by Henry Mulholland against Moses Bartlett, upon the written promise set out in the opinion. A trial was had, resulting in a verdict and judgment for the defendant.

Messrs. CRAWFORD & MARSHALL, for the appellant.

Mr. WILLIAM LATHROP, and Mr. C. M. BRAZEE, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action of assumpsit, in the Winnebago circuit court, resulting in a verdict and judgment for the defendant.

The question presented is, the liability of the defendant to the plaintiff, growing out of the following transaction, and which is the foundation of plaintiff's claim.

“MONTREAL, 10 th October, 1857.

£147.13.9, cy.

Four months after date, please pay to our own order at the agency of the City Bank, Toronto, one hundred and forty-seven pounds 13-9, currency, for value received.

BREWSTER, MULHOLLAND & CO.

To Messrs. Pringle, Daniels & Co.,

Uxbridge, C. W.

Accepted, Pringle, Daniels & Co.”

“MONTREAL, 20 Jan., 1859.

Messrs. Brewster, Mulholland & Co.:

DEAR SIRS--The above is a copy of an acceptance of the late firm of Pringle, Daniels & Co., for one hundred and forty-seven pounds 13-9 currency, which became due and payable on the 10th--13th February, 1858, and is now in your hands unpaid. Without in any manner acknowledging, either directly or indirectly, to be in any way liable for the above debt, still to avoid the trouble and annoyance of defending myself at law, from being made liable as a partner in the said firm of Pringle, Daniels & Co., which allegation I now deny, I hereby bind myself and agree to pay to Brewster, Mulholland & Co., or their order, in twelve months from this date, the above sum of one hundred and forty-seven pounds 13-9, with interest at the rate of seven per cent per annum, from its maturity till actual payment be made, should they not collect it from the estate of Pringle, Daniels & Co., in the meantime.

MOSES BARTLETT.”

The plea was the general issue. This instrument was written by Mulholland under the circumstances detailed in the record. The plaintiff in the action sought to show that defendant was a member of the firm of the drawees and acceptors of this bill, Pringle, Daniels & Co., which, if so, established his legal liability, and was a sufficient consideration for his promise. On this question there is some conflict in the testimony, but the great preponderance, we think, is that defendant never was at any time a member of that firm, or under any obligations to answer for their contracts, or pay their debts. He was a member of the firm of “H. Daniels & Co.,” a firm which had been doing business many years prior to this transaction, at a place called “Brookline,” distant eighteen miles from “Uxbridge,” the place of business of Pringle, Daniels & Co., the acceptors of the bill. This firm of H. Daniels & Co. was, as late as March 5, 1857, composed of Henry Daniels and George W. Coulston, in the proportion of two-thirds interest in Daniels and one-third in Coulston. In May following the defendant purchased of Daniels one-half of his interest in the firm, and thereby became a partner on an equal footing with Daniels and Coulston. The name of the firm was not changed. On the 8th of March, 1857, W. A. Pringle, H. Daniels and George W. Coulston formed a co-partnership under the name and style of Pringle, Daniels & Co., at Uxbridge. There was some talk of defendant's taking an interest in this firm, but, after examining into its condition, he declined. The business of the two firms was separate and distinct, Pringle managing the business of Pringle, Daniels & Co., and Coulston that of H. Daniels & Co.

In November, 1857, soon after the acceptance of the bill by the firm of Pringle, Daniels & Co., they made an assignment for the benefit of their creditors, which was signed by Pringle, Daniels and Coulston, and simultaneously with this H. Daniels individually made an assignment. The firm did not make an assignment, but ceased to do business, and defendant, still a member of the firm, was appointed agent to manage its affairs and wind up the business, which he did satisfactorily by paying the debts in full.

Brookline was the residence of the defendant, and the place of business of the firm of H. Daniels & Co. This place is distant from Montreal three hundred and fifty miles or more. When on a visit to that city for the purpose of getting an extension from the creditors of H. Daniels & Co., of whom the firm of Brewster, Mulholland & Co. represented here by the plaintiff, were one, the defendant was successful, and when he had accomplished this object, Mulholland presented to defendant this bill of exchange, and threatened immediate suit on it, against defendant, as a member of the firm of Pringle, Daniels & Co., the drawees and acceptors, unless he arranged it. This threat produced the writing on which this action was brought, and set out supra. These facts appear from the testimony in the record.

The defense is, there was no valid consideration for the instrument and none is expressed in it. If this be so, then the finding of the jury was right and the judgment should stand, and this is the important question in the case.

Forbearing to sue is admitted on all sides to be a good consideration, for which assumpsit will lie. 1 Ch. Pl. 101. Appellant's counsel has presented an able review of the British and American cases bearing upon this subject, by which it will be seen the earlier cases...