Pease v. Catlin

• Decision Date: 30 April 1878
• Citation: 1 Bradw. 88,1 Ill.App. 88
• Parties: SAMUEL W. PEASEv.CHARLES CATLIN.
• Court: United States Appellate Court of Illinois

1 Ill.App. 88

1 Bradw. 88

SAMUEL W. PEASE

v.CHARLES CATLIN.

Appellate Court of Illinois, First District.

April Term, 1878.

OPINION TEXT STARTS HERE

Error to the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.

Messrs. Eldridge & Tourtellotte, for plaintiff in error; that the promise by which a discharged debt is revived must be clear, distinct and unequivocal, cited Allen v. Ferguson, 9 B. R. 471; 18 Wall. 1; Fraley v. Kelly, 67 N. C. 78; Linton v. Stanton, 4 La. An. 401; Branch Bank v. Boykin, 9 Ala. 320; Stern v. Nussbaum, 47 How. Pr. 489; Goxtkeimer v. Keyser, 11 Penn. 364; Pratt v. Russell, 7 Cush. 462; Bennett v. Everett, 3 R. I. 152; Porter v. Porter, 31 Me. 169.

Partial payments on a debt are not in law a promise to pay the debt; neither is the payment of interest: Stark v. Stinson, 23 N. H. 259; Viele v. Ogilvie, 2 Greene, 326; Cambridge Inst. v. Littlefield, 6 Cush. 210.

Mr. Frank J. Loesch, for defendant in error; argued that where the question is one of credibility or contrariety of testimony, it is within the province of the jury to determine, and the verdict should not be set aside, and cited Germania Ins. Co. v. Hutchberger, 1 Chicago L. J. 62; Simons v. Waldron, 70 Ill. 281; Classen v. Schoenemann, 80 Ill. 304; Chapman v. Burt, 77 Ill. 337; Marshall v. Tracy, 74 Ill. 379.

That proof of payment of part of a debt barred by the Statute of Limitations, will revive the debt, and is sufficient evidence from which a jury may infer a promise to pay the balance: Mellick v. DeSeelhorst, Breese, 221; Ilsley v. Jewett, 2 Met. 168; Smith v. Ryan, 66 N. Y. 352.

And that the same rule will apply to debts barred by discharge in bankruptcy: Marshall v. Tracy, 74 Ill. 379; Classen v. Schoenemann, 80 Ill. 304.

MURPHY, P. J.

This is an action of assumpsit, commenced in the court below upon a promissory note, bearing date the 2d day of April, 1857, given by the plaintiff in error, Pease, to A. F. Devereux, and by him assigned to the defendant in error, April 5th, 1875.

The trial below resulted in a verdict and judgment on the note against the plaintiff in error for $344.60, to reverse which judgment this writ of error is prosecuted. To the declaration the plaintiff filed four pleas: 1st, non-assumpsit; 2d and 3d, discharge in bankruptcy on the 9th day of October, 1868; and 4th, the Statute of Limitations. To the 2d and 3d pleas, the defendant in error replied, a new promise to pay the note since such discharge in bankruptcy, to wit: On the 5th day of April, 1875. To the 4th plea, that the cause of action mentioned in the declaration did accrue within sixteen years next before the commencement of the suit. To the replication to the 2d and 3d pleas, the plaintiff rejoined that he did not ratify and confirm said promises and undertakings, and make said new promise as alleged. Upon the trial of these issues by a jury, a verdict was obtained by the plaintiff in error in the court below.

It is assigned for error: first, that the verdict is contrary to, and not supported by, the evidence. It is also assigned for error, the giving by the court of instructions asked by the defendant in error, and in refusing to give the instruction asked by the plaintiff in error, and in modifying the same, and giving said instruction so modified.

We have examined the record in this case carefully, and find that Devereux, the payee of the note, left Chicago in the fall of 1857, taking this note with him, and never saw the plaintiff in error from that time until the spring of 1875. At that time Devereux called upon the plaintiff, in straightened circumstances, and applied to him for help to some money. One hundred and fifty dollars was indicated as the amount desired, but in his testimony does not pretend that he asked the plaintiff for payment on this note, but appealed to him in the name of old friendship, to assist him, which the plaintiff agreed to do provided he could make collection of some money then due him.

Soon thereafter Devereux called again upon the plaintiff in error, who being unable to make collection, procured from one of his debtors a note for $150, due in sixty days, which he let Devereux have to assist him. This note last named being against one W. P. Wright, Devereux, on his return home to Fort Wayne, where he then resided, and where the note sued upon was indorsed upon it a payment of $150, by way of the Wright note so obtained. And it is insisted by the defendant that this is such a partial payment of the note as takes it out of the Statute of Limitations, and the operation of the discharge in bankruptcy.

There is no doubt as a proposition of law, that if the plaintiff in error had passed the Wright note to Devereux as part payment of the note sued on, and it had been so agreed by the parties at the time, it would have operated to revive the same; and on that question, the judgment would be right. But the defendant's evidence taken alone, uncontradicted, fails to show that to have been the agreement of the parties. The defense of the Statute of Limitations and discharge in bankruptcy are not defenses which commend themselves to the favorable consideration of juries, and particularly to the latter. The natural repugnance which pervades the minds of all honest men to any proceeding by which men are enabled to repudiate, and be relieved from the honest and faithful performance of their obligations fairly entered into, has probably...