Pixley v. Boynton

• Decision Date: 30 September 1875
• Citation: 1875 WL 8634,79 Ill. 351
• Parties: BENJAMIN F. PIXLEY et al.v.CHARLES W. BOYNTON et al.
• Court: Illinois Supreme Court

79 Ill. 351

1875 WL 8634 (Ill.)

BENJAMIN F. PIXLEY et al.

v.CHARLES W. BOYNTON et al.

Supreme Court of Illinois.

September Term, 1875.

APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

This was an action of assumpsit, brought by Charles W. Boynton, George S. Foster, and John S. Miller, partners, against Benjamin F. Pixley, Thomas W. Hall, and Joseph G. Hall, partners, upon a promissory note. The opinion of the court contains a statement of the material facts. Mr. FARLIN Q. BALL, for the appellants.

Messrs. PRENTISS & HOOKE, for the appellees.

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

The judgment in favor of plaintiffs in the court below was for $31.33 in excess of the ad damnum in the declaration. That sum had been remitted in this court by plaintiffs before the cause was submitted for decision. Under our present statute, this is permissible, and is in accordance with the practice that prevails.

The action is upon a promissory note, and defendants seek to avoid the payment on the ground the consideration is illegal. The special defense set up in the notice filed with the general issue is, that it was given in settlement of “differences” arising out of an optional contract in wheat, made on the board of trade, and that it was not the intention of any of the parties to the transaction to buy or sell, or deliver or receive grain, but their only purpose was to trade in “differences” in the price of grain on the Chicago market.

It will not be necessary to discuss the legal proposition, that such contracts are void, as being against a sound public morality, for the reason we do not think any such contract as defendants insist upon has been proven to have existed between the parties. The burden of proof is upon defendants to show the consideration of the note is illegal, and they ought, in a case like this, to be required to make this proof by a clear preponderance of the evidence. This they have not done.

The contract was made by Hall, one of the defendants, on behalf of Wallace, who was not himself a member of the board of trade, and could not by its usages make contracts in his own name in relation to transactions on 'change. In June, 1870, Wallace, through Hall, sold to Boynton, for his firm, 5,000 bushels No. 2 spring wheat, at $1.12 per bushel, “seller July.” Suddenly the price of wheat went up, and it was thought best to close up the matter. Accordingly, Hall, at the instance perhaps of Wallace, certainly in his interest, bought the wheat back from Boynton at an advance of fourteen cents per bushel. Neither Hall nor his firm had any real interest in the wheat, but as Hall and Boynton were both members of the board of trade, and as the contract was made in Hall's name, by his consent, and he was legally obligated to perform it, he would have been expelled had he not,...