Risinger v. Cheney

• Court: Illinois Supreme Court
• Writing for the Court: YOUNG
• Citation: Risinger v. Cheney, 2 Gilman 84, 7 Ill. 84, 1845 WL 3910 (Ill. 1845)
• Decision Date: 31 December 1845
• Parties: DANIEL S. RISINGER et al.v.OWEN CHENEY.

2 Gilman 84

7 Ill. 84

1845 WL 3910 (Ill.)

DANIEL S. RISINGER et al.

v.OWEN CHENEY.

Supreme Court of Illinois.

December Term, 1845.

ASSUMPSIT in the McLean circuit court, brought by the defendant in error against the plaintiffs in error. The cause was tried at the September term, 1845, before the Hon. Samuel H. Treat, without the intervention of a jury. Judgment was then rendered in favor of the plaintiff below, for the sum of $101.25.

A history of the case appears in the opinion of the court.

A. LINCOLN, for the plaintiffs in error, contended that the main point in the case was, whether the injunction issued was not a sufficient excuse for Risinger and Nye's failure to perform, so as to save the forfeiture of the note. He cited 1 U. S. Dig. 540, § 66.

J. T. STUART and B. S. EDWARDS, for the defendant in error.

YOUNG, J.^a1

This was an action of assumpsit, brought by Owen Cheney against Risinger and Nye to the September term, 1845, of the McLean circuit court, and the damages laid at three hundred dollars. The declaration contains two counts: the first on a promissory note made by Risinger and Nye to Owen Cheney, for the sum of one hundred dollars, dated at Bloomington the 31st day of May, 1845, and payable one month after date; and the second for the sum of one hundred dollars, for interest upon, and for the forbearance of divers large sums of money, etc., before that time lent and advanced to the defendants, etc.

The defendants Risinger and Nye pleaded non assumpsit, and issue being joined to the country, the cause was submitted to the court for trial, without the intervention of a jury, it being agreed by the parties, that all matters of defence which could be given in evidence under special pleas, should be admitted without objection, under the plea of non assumpsit.

The plaintiff, Cheney, then read in evidence to the court, the promissory note described in the first count of his declaration, and rested his case. The defendants, Risinger and Nye, then introduced Zera Patterson as a witness, who testified, that the said note, at the time of its execution, was deposited with him, to be delivered to the plaintiff, Cheney, in the event that Risinger and Nye should fail to comply with their part of a contract entered into between the plaintiff and defendants, on the same day the note was given, for the purchase of a mill, machinery, and steam engine, by the defendants from the plaintiffs; and that upon the maturity of the note, he had delivered it to the attorney of the plaintiff, without any further permission from the defendants. The defendants then produced and read in evidence a bond executed by the plaintiff to the defendants, in the penalty of $200, dated May 31, 1845, with the following condition, to wit: that if the said Risinger and Nye shall, on or before the first day of July next 1845, make, execute, and deliver to the said Owen Cheney, his heirs and assigns, a good and sufficient warranty deed in fee simple to nine acres of land, free from all incumbrances whatsoever; which said nine acres of land is near to the town of Pekin, in Tazewell county, and was formerly owned by Daniel Dillon; and shall also execute to the said Owen Cheney their promissory notes as follows: One note for $50, payable the 18th day of November, 1845; one note for the sum of $50, payable in twelve months from the date thereof; one note for $50 payable in thirteen months; one note for $75, payable in twenty-four months, and one note for $75, payable in twenty-five months, from the said date; and shall also deposit with the said Cheney, as collateral security, to secure the payment of the notes aforesaid, a note against Daniel M. Bailey for $250, due on the 18th day of November, 1845; and shall also execute to said Cheney, a bond binding themselves to pay in two years from the 1st day of May, 1845, the principal and interest due by said Cheney, on a mortgage executed by him to the State bank of Illinois, for the sum of $500, with interest from the 1st day of July, 1845; which said mortgage debt is secured by a mortgage upon the tract of land in McLean county, upon which said steam mill now stands, together with other tracts of land in said county; then and in that case, Cheney shall allow said Risinger and Nye, at their own expense, to erect for him the said steam mill, and all the machinery pertaining thereto, in the same condition the same now is, upon the said nine acres of land near Pekin, as aforesaid; and allow the said Risinger and Nye to use and occupy said mill and machinery without charge or rent for the term of two years from the 1st day of July, 1845; and if the said Risinger and Nye shall well and truly pay, or cause to be paid, the said bank mortgage with accruing interest thereon according to the conditions of the bond herein before described, as hereafter to be executed by the said Risinger and Nye, to said Cheney; and if the said Risinger and Nye shall also fully comply on their part as herein before mentioned, then the said Cheney shall make, execute, and deliver to the said Risinger and Nye a good and sufficient deed to the said nine acres of land, together with said mill and machinery to be erected thereon. Now, if, upon the compliance of the said Risinger and Nye with all the conditions aforesaid on their part to be kept and performed, the said Cheney shall fully comply with the conditions on his part to be kept and performed, then, and in that case, this obligation to be void, otherwise to become absolute.

(Signed) Owen Cheney,” [seal.]

The defendants next read in testimony a letter from Cheney to Risinger, dated July 10th, 1845, which is as follows: “SIR--Agreeably to arrangements, I went and saw Mr. Vanscoyac, and got him to go and see them men, and they say they won't let the mill go, until they have as much land mortgaged, as is unincumbered of theirs; and I am going to see one of my brothers, and see if he won't mortgage his land and take the obligation from you, and I think I can make the arrangements, and if I can I will let you know all about it in four or...