Spear v. Farmers' & Mechanics' Bank

• Decision Date: 15 June 1895
• Citation: 156 Ill. 555,41 N.E. 164
• Court: Illinois Supreme Court
• Parties: SPEAR v. FARMERS' & MECHANICS' BANK.

156 Ill. 555

41 N.E. 164

SPEAR

v.FARMERS' & MECHANICS' BANK.¹

Supreme Court of Illinois.

June 15, 1895.

Appeal from appellate court, Second district.

Bill by Solomon Spear against the Farmers' & Mechanics' Bank and others. Complainant obtained a decree, which was modified by the appellate court. 49 Ill. App. 509. Complainant appeals. Affirmed.Williams, Lawrence & Williams, for appellant.

G. W. Thompson, for appellee.

The follwoing statement of facts is taken from the opinion of the appellate court: ‘In this case appellee filed a bill against Farmers' & Mechanics' Bank and John V. Farwell Company, appellants, and I. P. Norton, to compel the defendants to pay to him attorney's fees included in judgment notes taken by them from Thompson & McLean when the makers were insolvent, and afterwards reduced to judgment and collected, and to enforce an alleged verbal agreement between complainant and the president of said bank that the bank should pay complainant one-half of any loss he might sustain through failure to collect from said Thompson & McLean certain debts due from them. The bill alleged that complainant recovered a judgment in vacation, January 21, 1891, against Thompson & McLean, for $4,200 damages and costs, on which execution was issued the same day, and returned June 15, 1891, satisfied as to $624.91, and unsatisfied as to the balance, which judgment remained in full force; that Thompson & McLean had been insolvent since January 1, 1891; that on January 19, 1891, they gave John V. Farwell Company a judgment note for $2,473.83 and $250 attorney's fee, upon which the payee, knowing the insolvency, entered judgment January 21, 1891, and collected the same out of the property of said insolvents; that on January 20, 1891, said insolvents gave I. P. Norton a judgment note for $220, and $25 attorney's fee, on which judgment was entered January 21, 1891, which was collected in full; that on January 21, 1891, said insolvents gave to the bank a judgment note for $2,043.67, and $102.18 attorney's fee, on which judgment was entered the same day, and which was collected in full; that said Thompson & McLean on December 1, 1890, and prior thereto, were indebted to complainant about $4,000 on account of his being surety for them with one Johnson, as Johnson, Thompson & McLean, to said bank, John V. Farwell Company and Locke, Hulet & Co., and were also indebted to said bank on other notes on which complainant was not surety, and on which the bank had no security; that about January 17, 1891, it was agreed between complainant and the bank that nothing should be done by either towards collecting said indebtedness until Thompson & McLean should complete an inventory of stock then being made, and that they would work together in protecting their claims, and, in case of loss on either of said claims, would bear it equally; that the bank disregarded its agreement, and obtained said note and judgment, covering only the unsecured debt to it, and sued Johnson, Thompson & McLean and complainant on the note on which complainant was surety, then amounting to $3,671.89; that complainant had been compelled to pay Locke, Hulet & Co. $237.80 on his said liability as surety for them; and that complainant's total loss, after deducting the amount collected on execution, and the profit realized by him on goods purchased at sheriff's sale, amounted to $2,400, one-half of which the bank should pay, under said agreement. The prayer of the bill was that the defendants should be decreed to pay complainant said attorney's fees, and that the bank should be decreed to pay to him onehalf of his said loss. The bank, in its answer, denied the making of the alleged agreement, as well as the authority of any officer of the bank to make an agreement of that kind, and pleaded the statute of frauds as a defense to such alleged agreement. The answer of John V. Farwell Company denied any knowledge on January 19, 1891, of the insolvency of Thompson & McLean, and admitted the taking of the judgment note, with attorney's fee, but averred that it was taken in renewal...