Reutchler v. Hucke

• Decision Date: 28 February 1878
• Citation: 3 Ill.App. 144,3 Bradw. 144
• Parties: JACOB B. REUTCHLER, use, etc.,v.AUGUST C. HUCKE.
• Court: United States Appellate Court of Illinois

3 Ill.App. 144

3 Bradw. 144

JACOB B. REUTCHLER, use, etc.,

v.AUGUST C. HUCKE.

Appellate Court of Illinois, Fourth District.

February Term, 1878.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of St. Clair county; the Hon. AMOS WATTS, Judge, presiding.

Mr. CHARLES W. THOMAS, for plaintiff in error; that the defendant could not be allowed a set-off for taxes which he had not paid--only promised to pay--cited Pitzer v. Harman, 8 Blackf. 112.

An obligation to pay is not the same as actual payment, though in some cases the giving of negotiable paper has been so considered: Smalley v. Edey, 19 Ill. 207; Cunning v. Hackley, 8 Johns. 202.

Where one deals with an agent, knowing his agency, he cannot set off a claim due him from the agent, against a debt due to the principal: Waterman on Set-off, § 267; Wharton on Agency, § 466

Messrs. HAY & KNISPEL, for defendant in error; that plaintiff's second instruction was properly refused, because it was not based on the evidence, cited Lawrence v. Jarvis, 32 Ill. 305; 43 Ill. 147; 53 Ill. 419.

When a principal is not disclosed, and the agent contracts for himself, the principal can only claim subject to the equities applicable to the agent: Wharton on Agency, 405; Koch v. Willi, 63 Ill. 144; Wheeler v. Reed, 36 Ill. 81.

Persons dealing with an agent, supposing him to be principal, can take advantage of any set-off against the agent: Wharton on Agency, 465; Koch v. Willi, 63 Ill. 144.

If a principal permits an agent to act as if he were principal, he will be subject to any set-off against the agent: 2 Parsons on Contracts, 251; Waterman on Set-off, 321; Stinson v. Gould, 74 Ill. 80.

Where a person becomes bound to the payment of money for another, payment by negotiable paper or securities will be considered equivalent to payment in cash: Ralston v. Wood, 15 Ill. 159; Gillilan v. Nixon, 26 Ill. 50; Cox v. Reed, 27 Ill. 434; Wilkenson v. Stewart, 30 Ill. 48; Jewett v. Palmer, 7 Johns. Ch. 65.

Whether payment was intended is a question for the jury: 2 Greenleaf's Ev. 519.

Defendant is still liable to the city for the balance unpaid: Coons v. The People, 76 Ill. 383.

A demand against the plaintiff assigned to the defendant before commencement of suit, may be set off, although he has not paid for the same: Everitt v. Strong, 5 Hill, 163.

Agreement by a grantee to pay a prior incumbrance may be enforced against him: Rawson's Adm'r v. Popland, 2 Sandf. 251; 3 Barb. Ch. 166.

An obligee in a bond is not obliged to first pay the indebtedness, in case of failure of the obligor to perform, before bringing suit: Pierce v. Plumb, 74 Ill. 326.

Actual transfer of the debt in a banker's book with knowledge and consent of both debtor and creditor is equivalent to payment: Eyles v. Ellis, 4 Bing. 112.

BAKER, J.

This was an action of assumpsit, prosecuted by Jacob B. Reutchler, who sued for the use of the People's Bank of Belleville, against August C. Hucke. The declaration contained the common counts. The defendant filed the general issue, and gave special notice that he would prove on the trial that before the suit was commenced he paid, laid out and expended for plaintiff, at his special instance and request, $1,250, the said sum being so paid by defendant for the taxes of plaintiff, due by him to the city of Belleville for the year 1874, and that defendant would set off said sum against the amount claimed in the declaration. The case was submitted at the January term, 1878, of the St. Clair Circuit Court, to a jury, and the jury returned a verdict in favor of the plaintiff, and assessed his damages at $298.49. The plaintiff thereupon moved the court for a new trial, which motion was overruled by the court, and judgment rendered upon the verdict. The plaintiff excepted to the ruling of the court in overruling the motion for a new trial, and brought the case to this court on a writ of error.

There are several errors assigned on the record. Among these are that the court erred in refusing to give plaintiff's second instruction; in giving the instruction hereinafter referred to, and in overruling the plaintiff's motion for a new trial.

The evidence shows that the defendant purchased from plaintiff a bill of nails amounting to $1,017.

In reference to the matter of set-off referred to in the special notice, the defendant Hucke testified upon the trial substantially as follows: “I was city tax collector of Belleville prior to 1876. Before that time Reutchler told me to mark his taxes paid when I settled with the city, and when I wanted my money I should come to him and get it. This was done two years in succession. I marked the tax books paid. Afterward Reutchler refused to pay me, and I bought these nails to get my money. I paid the city part of this tax. I settled with the city, and I owe the city part of it yet. I am responsible to the city for it. The total amount of the taxes was $718.51. I offered Reutchler his tax receipts, and he refused them. He said he wouldn't pay his taxes. I have settled with the city, and Mr. Reutchler is discharged as far as the city is concerned. The city has the tax books.”

Upon cross-examination he stated: “Reutchler came to me and told me he wanted me to pay his taxes in March, 1874. I was collector in 1875 and 1876. I didn't know that Reutchler would not pay me the taxes. It was after that I wanted a settlement with him. He put me off. I am to pay his taxes, and therefore I won't pay those notes. There has been an understanding that I am not to be bound unless I get the money out of Mr. Reutchler. I have paid over $100 of these taxes into the city treasury. How much over $100 I cannot say. I don't know whether I can say I have paid the money. I paid over all the money I collected and $100 more. That which I have not collected I have not paid, except about $100. I guess I have to pay the money yet. I only remember Mr. Reutchler refused to pay his taxes, and he owes them to me, and that is all I can remember distinctly.”

In reference to this same matter of taxes Reutchler testified: “Some time in the early part of 1875 I went to Mr. Hucke and told him to make out my tax receipts and lay them by, and when I got ready I would pay them. I never told Mr. Hucke to pay my taxes. The year before he had made out my receipts and laid them by, and when I got ready I paid them. I never gave Hucke any authority to pay my taxes, and my property is still liable for it. I paid the tax in 1874. It was in 1875 I told Hucke to make out my receipts. I never paid Hucke this claim, nor did I pay any of the city taxes in 1875. They were considered illegal.”

G. A. Willey testified that he was a member of the...