Sargeant v. Kellogg
| Decision Date | 31 December 1848 |
| Citation | 1848 WL 4157,10 Ill. 273,5 Gilman 273 |
| Parties | ALEXANDER SARGEANT, who sues for the use of Alonzo Huntington,v.SHERMAN KELLOGG et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
DEBT, in the Kendall circuit court, brought by the plaintiff in error against the defendants in error, and heard before the Hon. John D. Caton and a jury, at the August term, 1843, when the issues were found for the defendants.
A statement of the pleadings and evidence in the case will be found in the opinion of the court.
O. PETERS, for the plaintiff in error:
I. The written instrument showing the sales of the claim or improvements was improperly admitted as evidence, because,
1. The defence set up is, that the consideration of the note has failed, or that it was without consideration. To show this, the defendants aver that the consideration was the sale of a claim on government land. The written instrument shows that it was given for improvements. It was therefore inadmissible as not tending to prove the issue, but rather disproving the issue. The court must try the issues as the parties make them. Phelps v. Jenkins, 1 Scam. 48.
2. There was no proof of the execution of the instrument. This is not a case where its execution must be denied under oath, but its execution must be proved. Rev. Stat. 415.
II. So, also, the parol proof offered and permitted to go to the jury was inadmissible, for the reason that the written instrument shows that the note was given, not for a claim as alleged in the pleading, but for improvements. Proving failure of title to the claim or fraud in the sale of the claim, in no way tended to show a failure or want of consideration of a note given for an entirely different subject matter, viz: improvements upon the public lands. These improvements are made a good consideration for a note or contract by statute. Rev. Stat. 366, § 1; R. L. 420.
III. The parol proof was also inadmissible, because it contradicted the written instrument introduced by the plaintiffs themselves.
That instrument was conclusive that there was no such failure of consideration, or want of consideration as is set up in the defence. The parties are bound by the recitals in the deed.
The evidence related wholly to a tract of land which did not constitute any part of the consideration of the note, thus attempting to contradict and vary the terms of the contract which the defendants themselves had read in evidence. The rule it too well settled to require a reference to authorities to sustain it.
IV. The whole defence set up in the notice is insufficient, because it nowhere appears that the defendants were ousted of their possession, or that Pierce ever asserted any right to the claim, or ever was in possession thereof, or that defendants have in any way suffered from the supposed fraudulent representations, or are likely to do so.
V. The decision of the court was erroneous in refusing the instruction asked for by the plaintiff, and in giving the instruction asked for by the defendants.
The objection to this instruction is based on the statute of 1837, re-enacted in the revised statutes. Rev. Stat. 336, §§ 2-4. The statute requires that the claim shall be “so plainly marked that it can be plainly designated and distinguished from adjacent lands.” To say that a natural object is marking out the claim is an absurdity. The object and language of the statute requires that some affirmative act should be done. Doing nothing and leaving the land as nature left it would not notify those wishing to make adjacent claims how far to extend them, or when they were encroaching upon another's claim. The intention of the legislature must have been that the party claiming by constructive possession should do something to indicate his intention.
The set-off ought not to be allowed. None of the cases go so far as to allow it. The set-off here claimed does not arise out of the contract of sale and giving of the note, but out of an alleged fraud inducing to the contract.
In Edwards v. Todd, 1 Scam. 463, the set-off claimed, arose out of the conduct of the captain of the vessel in the execution of the contract. He had contracted to carry the goods, the law implying proper diligence in the fulfillment of the contract; the loss by the negligence and carelessness in doing what he had agreed to do, is subject matter of set-off. The court say (p. 465): “The investigation, then, is confined to an ascertainment of the performance of the contract between the parties, according to its legal import and effect,” and whether the contract has been performed, etc. The court, also, (on p. 467) place the decision on the ground that the master or owner would be liable in an action of assumpsit for the loss of the goods.
In Nichols v. Ruckels, 3 Scam. 298, which was an action to recover an account, the set-off claimed grew out of a written contract for the sale of a lot, and does not reach this case.
I rely on the case of Hawks v. Lands, 3 Gilm. 227, 232, to show that this set-off should not be allowed. This action was assumpsit for money lent, etc., and account stated; set-off pleaded of amount of the value paid for a lot, etc., and the court say, that the cases have only gone the length, that damages arising out of the contract on which the suit was brought, are properly the subject of set-off, and that no warrant is found for extending it further. The contract in this case was for the sale of improvements on public lands, and for an unimproved claim. This suit is not brought for any breach of this contract of sale, or in any way to enforce it. The amount here claimed as a set-off, is in the nature of damages for a false representation of title, inducing to the sale. The remedy for this, for the defendants would be, not an action of assumpsit, but an action on the case for the deceit. Ward v. Wiman, 17 Wend. 193.
In Massie v. Crawford, 3 Mon. 219, the court say: “In an action founded upon a deceit in the sale of a thing, the declaration must necessarily be in tort.” 1 Com. Dig. 358, A. 11; see, also, 1 U. S. Dig. (Supplement) 517, title, Deceit. This undoubtedly is the rule. The pleas (notices) in the case at bar, set up a fraudulent representation as to the sale. This, if anything, is a tort, for which assumpsit will not lie. It does not grow out of it, nor from any act under it. It precedes it, and is not within any of the cases allowing off-sets, that have been decided in this court.
As it is said in Hawks v. Lands, 3 Gilm. 232, such construction would involve irremediable injustice and endless confusion; “it would invest justices of the peace with full jurisdiction over questions involving the title to, and covenants concerning real estate,” etc.
It is true, that the unliquidated damages claimed as a set-off, grew out of transactions between these parties. But they do not arise out of that part of their transactions for which the note in suit was given; that was for improvements. The damages claimed are for the misrepresentation relative to the claim--the unimproved land--another subject matter of contract entirely. But if it were otherwise, as it is a tort, and the remedy is only by an action for a tort, it ought not to be set-off; and especially so, when it is clear that it is a claim not for any act under the contract, but merely inducing to it.
It seems to me that the distinction between a case where a party is seeking to recover, as in the case of the vessel, and this case, is quite apparent.
B. F. FRIDLEY, and M. BRAYMAN, for the defendants in error.
This was an action of debt, brought by Alexander Sargeant against Sherman and George W. Kellogg. The declaration was on a promissory note for $770, made by the defendants to John Sargeant on the 20th of October, 1837, payable in one year, credited with $220, paid on the 25th of October, 1837, and assigned by the payee to the plaintiff on the 7th of February, 1838.
The defendants pleaded nil debet, and gave notice of set-off; first, that the note was assigned after it became due, and that the payee was indebted to them in the sum of one thousand dollars, for money had and received, and for money paid; and second, that the note was assigned after it became due, and that the payee, at the date thereof, sold the defendants a claim on government land for the sum of $1500, $730 of which was then paid, and the note given for the payment of the residue; that to a part of the claim, the part unimproved, of the value of $1000, the payee at the time fraudulently represented that he had a good title and right of possession, except as against the United States; whereas, in fact, he had no title, claim, or right...
To continue reading
Request your trial
-
Summerville v. Rodgers
...taken here, where the objection is of such a nature that it might have been removed by further evidence.' In Sargeant v. Kellogg, 5 Gilman 273, at page 281, 10 Ill. 273, at page 281 the court 'The general objection to its introduction must be understood as only raising the question of the r......