Paton v. Stewart

• Decision Date: 30 September 1875
• Citation: 78 Ill. 481,1875 WL 8517
• Parties: William PATON et al.v.Hart L. STEWART.
• Court: Illinois Supreme Court

78 Ill. 481

1875 WL 8517 (Ill.)

William PATON et al.

v.Hart L. STEWART.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Superior Court of Cook county; the Hon. JOHN BURNS, Judge, presiding.

This was an action of assumpsit, brought by William Paton, Thomas C.M. Paton, Jonathan Longmire, Andrew G. Agnew and William L. Paton, partners, under the name and style of Paton & Co., against Hart L. Stewart, upon his guaranty of a promissory note given by Geo. E. Gardner & Co., to Paton & Co., dated January 17, 1874, for $300, payable five months after date. The opinion of the court presents the material facts of the case.

Messrs. McCLELLAN & HODGES, for the plaintiffs in error.

Mr. GRANT GOODRICH, and Mr. JNO. C. PATTERSON, for the defendant in error.

Mr. CHIEF JUSTICE SCOTT delivered the opinion of the Court:

This action is upon a written guaranty of defendant upon a promissory note made by George E. Gardner & Co. to plaintiffs. All the principal facts are alleged in the special pleas, upon which the defense is predicated.

In substance, the fourth plea is, that Gardner & Co., being indebted to plaintiffs and others in large sums of money, on petition of plaintiffs a rule was issued out of the United States District Court that they show cause why they should not be adjudicated bankrupts, and while the rule was in force, and before any answer had been made thereunto, it was wrongfully and against the bankrupt law, and without the concurrence or consent of the other creditors, agreed between plaintiffs and Gardner & Co. that plaintiffs would not further prosecute the rule in bankruptcy-would abandon the same and all further proceedings thereunder, and, in consideration of plaintiffs' agreement in that behalf, Gardner & Co. executed the note which is the basis of this action, and procured defendant to guaranty its payment. The fifth plea states substantially the same facts, with the further averment that plaintiffs did not, at any time, dismiss the proceedings in bankruptcy, or cause them to be ended, and avers that, therefore, the consideration of the note has wholly failed.

The sixth plea avers the note was given with the agreement plaintiffs should dismiss the proceedings in bankruptcy against Gardner & Co.; that plaintiffs never dismissed such proceedings, and hence the consideration has wholly failed; and in the seventh plea it is averred that, since the bringing of this suit, plaintiffs themselves have been adjudicated bankrupts, and an assignee appointed.

Issues were joined upon all these several pleas, as well as others, and the cause tried before a jury, who, upon the evidence, found for defendant. It is sought to reverse the judgment for the sole reason the verdict is contrary to the law and the evidence. No other error is relied upon.

The decision might, with propriety, be placed on the ground the verdict...