Tenney v. Foote
| Decision Date | 18 May 1880 |
| Citation | 1880 WL 10012,95 Ill. 99 |
| Parties | HENRY M. TENNEY et al.v.IRA FOOTE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Appellate Court for the First District.
This was assumpsit by appellants, against appellee, upon a guaranty of a promissory note, as follows: “$5000. On the first day of January, A. D. 1877, the estate of Ira Couch, deceased, promise to pay to the order of Ira Foote, at their office, in Chicago, Illinois, five thousand dollars, with interest at eight per cent per annum, for value received.
Dated, Chicago, July 1st, 1876.
Trustees of the Estate of Ira Couch, deceased.”
(Endorsed.) “I hereby guarantee payment of the within note, at maturity, for value received, at maturity.
IRA FOOTE,
By J. H. RICE, Attorney in fact.”
The declaration contained a special count upon this guaranty. Thereupon, the pleadings were:
First. General issue.
Second. That the promises in the declaration mentioned were upon the consideration of money won by Stephen G. Hooker and George D. Lincoln, under the firm name and style of S. G. Hooker & Co., from the defendant, by gaming, to-wit: by buying and selling for defendant on the board of trade deals and options in grain, wheat, lard and pork--which options and deals were to be settled upon differences alone--wherefore, by force of the statute, etc., the said promises were void.
Third. That the consideration of the promises was money won by Hooker and Lincoln from the defendant, by gaming, to-wit: dealing in options for grain, and other commodities, on the board of trade, upon differences alone, wherein neither party had or was to deliver or receive any such article, bought or sold, of which the plaintiff had notice, wherefore, by force of the statute, the promises were void.
Affidavit of merits by defendant.
Replication to second and third pleas, that the consideration of the promises was not money won by gaming, in the manner and form as alleged in the pleas.
Replication to second plea, that the promises were not made on consideration of money won by Hooker and Lincoln, by gaming, by buying and selling, for defendant, on the board of trade, deals and options in grain, which were to be settled on differences alone.
Replication to third plea, that the promises were not on or for commissions won by gaming, by dealing in options for grain, etc., for defendant, on the board of trade, whereby neither party was to deliver said grain, as in said plea alleged.
Issues were properly joined upon the several replications. A jury was waived, by agreement of the parties, and the cause was tried by the court. The court found the issues for appellee. Motion was made by appellants to set aside the finding, and for a new trial. This motion was overruled, and the court gave judgment in favor of appellee. To this proper exception was taken, and appellants took the case, by appeal, to the Appellate Court for the First District, where the judgment of the circuit court was, on hearing, affirmed. The present appeal is from that judgment.
The Appellate Court found the following facts, specially:
“We hereby certify that upon the hearing of this cause the said Appellate Court found the following facts:
That from the fall of 1874 to the summer of 1876, Stephen G. Hooker and George D. Lincoln, composing the firm of S. G. Hooker & Co., were commission merchants of Chicago, and members of the board of trade of said city, and as such engaged in a general commission business; that Lincoln put in all the capital of the firm, and Hooker generally directed the trading on the board of trade.
That Foote was a mechanic, and apparently rather ignorant and inexperienced in matters outside of his own proper business.
Some time prior to the dealings out of which this suit has grown, Foote employed one Adams, a commission merchant, to buy a quantity of oats for him. The oats were received and carried for some time, and as a result of the deal Foote experienced a considerable loss. For the purpose of obtaining assistance in the adjustment of his accounts with Adams growing out of said transaction, Foote had recourse to said Hooker, who was at this time a personal friend of his. Hooker thereupon began to solicit Foote, if he wanted to deal any more to employ him, saying that he could make some money for him. Foote replied that he wanted no such deal as the one he had had with Adams; that he didn't want any grain, and wouldn't handle any grain, and that he had no money to put up, but that if Hooker would deal for him in options and settle upon differences he thought he would employ him. Hooker assured him that he could, and an agreement was thereupon concluded, that Hooker should go on the board of trade, but with a distinct understanding that it should be only in options, and that no produce should be delivered or received on his account, but the transactions should be settled upon differences.
That upon the question as to whether the terms of this contract were communicated to Lincoln the testimony is conflicting, and we find no such preponderance of the evidence in favor of the proposition that they were not communicated to said Lincoln as will warrant us in reversing the finding of the court below to the contrary.
That from the fall of 1874 (the time when said agreement between said Foote and said Hooker was made), down to June, 1876, the firm of S. G. Hooker & Co. dealt for Foote upon the board of trade; that said dealings were in form purchases and sales of grain for future delivery; that said contracts for purchases and sales of grain were, as is the usual method of dealing upon the board of trade, made in the name of said S. G. Hooker & Co., with other members of said board; that said contracts were in form purchases and sales of property for future delivery; that said deals were from time to time communicated by said S. G. Hooker & Co. to said Foote as the same were made. That all of said contracts, with one exception, were settled by the parties thereto before the time of delivery therein provided for, by receipt and payment of differences in price; that on one of said contracts a quantity of corn was received by said S. G. Hooker & Co.
That in the earlier dealings of said Hooker & Co. for said Foote, profits were realized, which were paid over to Foote by said Hooker & Co. to the amount of several thousand dollars; that afterwards said dealings resulted in losses, and some time in 1874 or 1875 Foote gave to Hooker & Co. his note for $15,000.
In June, 1876, the indebtedness from Foote to said S. G. Hooker & Co., arising out of said losses, including said $15,000 note, amounted to about $22,000, all of which had accrued for the payment of losses by said Hooker & Co. for Foote in the course of said dealings, and for commissions on said purchases and sales, and for storage.
In April, 1876, when the balance against said Foote was about $19,000, said Hooker & Co. presented to him an itemized statement of the account, to which said Foote made no objection, except to one-half of the commissions charged, which half commissions were thereupon deducted from said account by said S. G. Hooker & Co.
In June, 1876, Foote, acting through one Rice, his agent, settled with said S. G. Hooker & Co. for the amount of said account, after said deduction of commissions, by paying about $2000 in cash, and by endorsing and guaranteeing to Hooker & Co. four notes of the estate of Ira Couch, each for $5000.
One of the notes thus endorsed and guaranteed was transferred before maturity by said S. G. Hooker & Co. to the plaintiffs, and it is this note upon which this suit is brought.
Judges.”
Messrs. MCCOY & PRATT, for the appellants.
Mr. CHARLES H. REED, and Mr. EMERY A. STORRS, for the appellee.
The only errors assigned on this record are:
“ First. Because the said court erred in affirming the judgment of the circuit court of Cook county in finding the issues for the defendant below.
Second. Because the court erred in not finding whether there was or was not a preponderance of evidence showing that Lincoln had notice before and at the time the dealings for Foote were carried on upon the board of trade,...
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