Stoner v. Stoner

• Decision Date: 29 September 1953
• Docket Number: Gen. No. 45954
• Citation: 115 N.E.2d 103,351 Ill.App. 304
• Parties: STONER v. STONER.
• Court: United States Appellate Court of Illinois

Page 103

115 N.E.2d 103

351 Ill.App. 304

STONER v. STONER.

Gen. No. 45954.

Appellate Court of Illinois, First District, Second Division.

Sept. 29, 1953.

Cohon and Goldstein, Chicago, for appellant.

Eckhart, Klein, McSwain & Campbell, Chicago, John Neal Compbell, M. A. Palumbo, Chicago, of counsel, for respondent.

SCHWARTZ, Presiding Justice.

This is an appeal from an order of April 10, 1952, denying the petition of plaintiff to vacate a satisfaction of judgment filed by defendant on October 3, 1949. On November 16, 1943 a decree was entered in the Superior Court of Cook County in favor of Floyd J. Stoner against his brother Herbert H. Stoner for payment of $85,355.40. In August 1946 the brothers met in the office of Paul Hassell, attorney for defendant. It was there agreed that the decree would be satisfied and mutual releases would be executed. Under date of August 31, 1946 a mutual release agreement was drawn up, reciting that judgment was obtained by plaintiff against defendant on November 16, 1943; that there was a judgment for costs against plaintiff in favor of Helen Stoner (Herbert's wife) and Stoner's Commissaries, Inc.; that other controversies had arisen between the brothers; and that certain amounts and properties had been accepted in satisfaction, and each released the other from any and all claims. This agreement was signed by Herbert H. Stoner, Floyd J. Stoner, Helen Stoner, and Stoner's Commissaries, Inc. Herbert paid Floyd $3000 and subsequently Floyd executed and delivered a satisfaction of judgment to Herbert, which was not filed with the Clerk of the court until October 3, 1949.

On November 15, 1949 the petition in question was filed by Floyd, alleging that he had received only $3000 for the satisfaction of judgment and that this was an insufficient consideration. The petition prayed that the filing of the satisfaction be vacated and that the record be made to show that the $3000 had been accepted by him in partial satisfaction of said judgment. Defendant answered, setting forth the defense of laches, in that plaintiff had not taken action for a period of more than three years to rescind or disavow the satisfaction admittedly executed by him, and that there were additional considerations for the release. The court, after hearing the evidence, dismissed the petition for want of equity. From this order plaintiff appeals.

A party seeking to rescind or set aside a transaction on the ground of fraud or inadequacy of consideration must move with reasonable diligence. Huiller v. Ryan, 306 Ill. 88, 137 N.E. 484; Hamilton v. Hamilton, 231 Ill. 128, 133, 83 N.E. 125; Prather v. Hill, 36 Ill. 402; Ullrich v. Ullrich, 299 Ill.App. 460, 20 N.E.2d 347; Knaus v. Chicago Title & Trust Co., 365 Ill. 588, 7 N.E.2d 298. In Huiller v. Ryan, supra, eighteen months had elapsed between the execution of a quit-claim deed and institution of a suit to set it aside for inadequacy of consideration. It was held that this was too long a delay. In Prather v. Hill, supra, a bill in chancery to set aside a sale by a sheriff was filed three years after the sale. The court there said:

'Where an application comes so late as the present one for relief, it should be satisfactorily shown that the party was prevented from making his application at an earlier period, before a court will grant relief. In this case no reason is shown for the extraordinary delay.'

While the question of laches is stressed and argued at length by defendant here, plaintiff gives it brief consideration, relying squarely on the proposition that the failure of defendant to file the satisfaction piece for three years excused plaintiff's delay. At first blush this argument appears to be plausible. But, on consideration, it can readily be seen that there is no substantial relationship between the two events. The satisfaction of judgment was not the contract, but was an instrument given to implement the agreement, the true substance of which was in the exchange of mutual releases. Delay in filing the satisfaction piece did not prevent plaintiff from moving to set aside the agreement. Plaintiff, at any time before the satisfaction piece was filed, could have caused an execution to issue and thus compelled defendant to litigate the validity of the satisfaction and release, or he could have filed a separate complaint in equity. It was thus within the power of plaintiff to precipitate a trial of the issue at any time and it was his duty to take such action promptly. Defendant, on the other hand, was under no legal duty to file the satisfaction piece. His delay could hurt no one but himself, and would not affect the binding character of the mutual release agreement. In the absence, therefore, of any justification for waiting three years to attack the validity of the mutual release and the satisfaction given pursuant thereto, the laches of plaintiff is in itself sufficient to sustain the chancellor's finding.

However, we have considered the question of whether the consideration for the release and satisfaction was adequate. In Huiller v. Ryan, 306 Ill. 88, 137 N.E. 484, 485, it was said: 'Mere inadequacy of consideration is not a distinct ground for equitable relief * * * and standing alone is ordinarily of little weight as evidence of fraud * * *.' However, there is a principle of law that the payment of a part of a fixed and certain demand which is due and not in dispute is not in satisfaction of the whole debt, even where the creditor agrees to accept the part for the whole and gives a receipt for the whole. Ostrander v. Scott, 161 Ill. 339, 345, 43 N.E. 1089; Wright v. Federal Wrecking Co., 331 Ill.App. 231, 73 N.E.2d 16; Fichter v. Milk Wagon Drivers' Union, 382 Ill. 91, 46 N.E.2d 921, 171 A.L.R. 1. This principle is one which courts apply cautiously. To do otherwise might bring it into conflict with another principle, to-wit: that it is the policy of courts to uphold agreements in settlement of disputes, particularly, family controversies. In considering this phase of the case, the origin and history of the controversy is relevant. The two brothers originally were in partnership in Ohio. Defendant purchased plaintiff's interest in the business in 1923 and gave him notes therefor. In 1924, plaintiff sued in Ohio, and obtained a judgment on these notes in the sum of $54,080. Later in that year defendant paid plaintiff $10,000 in cash and gave him notes in the amount of $42,360, in consideration of which plaintiff promised to vacate the judgment he had entered on the 1923 notes. The two brothers later left Ohio and came to Chicago, where they revived a business association and personal friendship. Then, in 1940, sixteen years after they had been given, plaintiff sued defendant on the notes, and it was in this suit, of which the instant proceeding is a branch, that the decree was entered in favor of plaintiff and against defendant in the sum of $85,355.40. In addition to seeking this money decree against defendant, plaintiff also impleaded Stoner's Commissaries, Inc. and Helen Stoner, claiming that he had a partnership in the restaurant business operated by them. In this branch of the case, the finding was against plaintiff, and the court taxed costs of $901.50, twenty-five percent to defendant and the balance of $676.13 to plaintiff. All these fees were paid by Mrs. Stoner. Following this, the instant proceedings were instituted.

Upon the hearing, Paul Hassell, one of the attorneys for defendant, testified that the two brothers came to see him four or five days prior to August 31, 1946 and said they had been talking over the...