Peck v. Boggess

• Decision Date: 31 December 1836
• Citation: 2 Ill. 281,1836 WL 2344,1 Scam. 281
• Parties: CHARLES PECK, appellant,v.WILLIAM BOGGESS, appellee.
• Court: Illinois Supreme Court

1 Scam. 281

2 Ill. 281

1836 WL 2344 (Ill.)

CHARLES PECK, appellant,

v.WILLIAM BOGGESS, appellee.

Supreme Court of Illinois.

December Term, 1836.

THIS was an action commenced in the Jo Daviess Circuit Court, by Peck against Boggess, upon a promissory note for $615.19, given by the defendant, Boggess, to one John D. Mullikin, and by said Mullikin assigned to the plaintiff, on the 15th day of May, 1834. The note was dated Aug. 24, 1833, and payable thirty days after date. The defendant filed three special pleas, to all of which the plaintiff demurred. The demurrer was sustained to the first and second, and overruled to the third plea. Issue was then taken on the third plea, which alleged “that said promissory note was made and executed without any good or valuable consideration whatever,” and leave taken by the defendant to file two amended pleas. The amended pleas were demurred to by the plaintiff. The Court sustained the demurrer to the first amended plea, and overruled it as to the second, which was as follows:

And for further plea in this behalf, the said defendant comes, etc., when, etc., and says the said plaintiff, his aforesaid action thereof against him ought not to have and maintain, because he says that the said promissory note, in said plaintiff's declaration mentioned, was executed and given by this defendant upon the settlement of a joint concern theretofore existing between the said John D. Mullikin and the said defendant, in consideration that the said Mullikin should deliver over to the said defendant all moneys then on hand belonging to said joint concern, and for no other consideration whatever. This defendant avers that the said Mullikin did not deliver over to said defendant all moneys on hand belonging to the said joint concern, but only the sum of thirty-four dollars, whereas, in truth and in fact, there was then on hand belonging to said joint concern the sum of two thousand dollars; and the said defendant says that the consideration of said note has failed in this, that the said Mullikin did not deliver over to this defendant the whole of the said two thousand dollars, but only the sum of thirty-four dollars as aforesaid, and this he is ready to verify, etc., wherefore, etc.

B. MILLS, Att'y for def't.

To this plea the plaintiff filed a general replication, and the cause was submitted to a jury, who found a verdict for the defendant. The cause was tried before the Hon. Stephen T. Logan, at the August term, 1835. The plaintiff in the Court below appealed to this Court. On the trial in the Court below, the following bill of exceptions was taken:

On the trial of this cause on the issues joined, the witnesses having been heard by the jury on the part of the defendant, none having been produced on the part of the plaintiff, the plaintiff, by his counsel, moved the Court to instruct the jury as follows, viz.: That the dissolution of partnership between Boggess and Mullikin, the assignor, and the transfer to Boggess of the debts and accounts due the firm, and the stock and property of the firm, was a good and valuable consideration. That the defendant on the special plea last traversed, and upon which issue was joined, must have proved to the jury that Mullikin had on hand two thousand dollars, as therein alleged, of partnership money at the time of its dissolution and of executing the note sued on, and that the payng over of that sum was the sole consideration of said note. But the Court, as to the last instruction, said there could be no doubt such proof must be made, but that the testimony proved that the payment of the two thousand dollars was not the sole consideration of the note, and that the jury ought not to take that plea into consideration, but should be confined in their verdict to the other issue. And the Court refused to give the instructions as asked for, but gave instructions to the jury as follows, viz.: The Court instruct the jury, that if they believe, from the evidence, that on the dissolution of the partnership between Boggess and Mullikin they made an estimate of the property of the partnership, and the debts due from and to the partnership, and that on such estimate Mullikin's interest was found to be worth $615, and there upon it was agreed that Boggess should take the partnership property and debts and pay the debts due from the partnership, and that Boggess executed his note in consideration thereof to Mullikin for $615; and if they further believe that there was a mistake in the estimate, and that either in consequence of the debts due from the partnership being greater than they were estimated to be, or the debts due to the partnership being less than the estimate, the interest of Mullikin was worth nothing, then the note is without consideration and not binding on Boggess, unless they believe that Boggess agreed to take his interest whatever it should be.

That if they believe from the evidence that at the dissolution of the partnership between Boggess and Mullikin, Boggess agreed to give Mullikin $615 for his interest in the firm, and executed his note therefor, and that Boggess was induced to do so by the representations of Mullikin, from which it appeared that Mullikin's...