Pratt v. the Trustees of The Baptist Soc'y of Elgin.
| Decision Date | 30 September 1879 |
| Citation | 34 Am.Rep. 187,1879 WL 8637,93 Ill. 475 |
| Parties | MARY L. PRATT, Admx. etc.v.THE TRUSTEES OF THE BAPTIST SOCIETY OF ELGIN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Kane county; the Hon. HIRAM H. CODY, Judge, presiding. Mr. H. T. GILBERT, and Mr. W. J. BROWN, for the appellant.
Mr. J. H. MAYBORNE, for the appellees.
Appellees obtained judgment in the county court of Kane county against Mary L. Pratt, as administratrix of the estate of Philemon B. Pratt, deceased, on two promissory notes executed by the deceased to the appellees on the 6th of July, 1871,--one for $300, payable one year after date, and the other for the sum of $327.50, payable two years after date, and both bearing interest at the rate of ten per cent per annum. Appeal was taken from that judgment to the circuit court of Kane county, where the cause was again tried at its October term, 1876, resulting, as before, in a judgment in favor of appellees for the amount of the notes, principal and interest. Mary L. Pratt, administratrix, appeals from that judgment, and brings the rulings of the circuit court before us for review.
The defence interposed to the notes is, that they were executed without any valid consideration.
When the case was first argued, we determined, on the questions then considered, to affirm the judgment; but, on considering a petition for rehearing, we felt that the cause should be further heard, and accordingly we ordered a rehearing.
The question now to be passed upon was not considered on the first hearing of the case, and no notice was taken of it in the opinion we then filed, because it was not presented in the opening argument of counsel.
Ordinarily, except for good cause shown, we are not disposed to consider a point raised and discussed by appellant's counsel, for the first time, in his reply brief; but where, as here, an estate of a deceased person is sought thereby to be protected, we are disposed to hold to a less inflexible rule, and to consider the point, if it go to the merits of the case, after allowing to the opposite side full opportunity to be heard upon it. That opportunity has now been allowed and availed of in the present case, and in our opinion the ends of justice require that the question discussed be considered, and a decision thereon rendered.
Whether this particular question was argued in the circuit court we can not, except by inference, and not even in that way satisfactorily, know. It is sufficient that the objection taken in the circuit court comprehends this question, and it does not affirmatively appear that it was not considered.
The question to be considered is, did Pratt's death revoke the promise expressed in the notes, no money having been expended, or labor bestowed, or liability of any kind incurred, prior to his death, upon the faith of that promise?
The purpose in giving the notes was to enable the church represented by appellees to purchase a bell. The cost of a bell of a particular size, etc., was estimated by Pratt, and he gave his notes for the amount of the estimate, intending that when the notes were paid the money should be devoted to paying for such a bell, and when the notes matured, at Pratt's suggestion to let them stand, because, as he alleged, bell metal was getting cheaper, and they would thereby be enabled to procure a larger bell, no effort was made to collect the notes, and they were permitted to remain just as they were; but there was no undertaking on the part of appellees, nor the church which they represent, to procure a bell, and there is no proof of any act done, or liability incurred by appellees, or any one else, in reliance upon those notes, before the death of Pratt. It is shown that a bell has been procured, and probably there is evidence sufficient to show that this has been done on the faith of those notes, but it appears with reasonable certainty that this has been since Pratt's death. If a contract therefor was made in...
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