Waite v. Dennison

• Decision Date: 30 September 1869
• Citation: 1869 WL 5336,51 Ill. 319
• Parties: CHARLES B. WAITEv.DUDLEY C. DENNISON.
• Court: Illinois Supreme Court

51 Ill. 319

1869 WL 5336 (Ill.)

CHARLES B. WAITE

v.DUDLEY C. DENNISON.

Supreme Court of Illinois.

September Term, 1869.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.

The facts in this case are fully presented in the opinion of the court.

Mr. CHARLES B. WAITE, pro se.

Messrs. HIBBARD, RICH & NOBLE, for the defendant in error.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of assumpsit, on a promissory note, held by defendant in error, by assignment from John A. Jameson, against plaintiff in error. It was urged in the court below that the note had been satisfied by money paid at different times, the foreclosure of a mortgage on real estate, and the sale of a law library under a chattel mortgage. It is also claimed that the sale of the library was illegal, and that defendant below had a right to set off the value of the law books thus sold, not at what they brought, but at their full value. The note read in evidence was for the sum of $890, upon which there were several payments endorsed. It also appears that plaintiff in error had given to Jameson another note for $189. 13, which had also been endorsed to defendant in error. The defendant in error, it appears, had also paid the taxes, amounting in all to $71.78, on the mortgaged lands. These notes were given the 1st of November, 1860, and bore 10 per cent. interest. There were endorsed on the larger note, at different times, payments amounting to the sum of $736.41. If interest be computed on this note, as credited, to the time the judgment was rendered, it appears there was due thereon $658.07. The evidence shows that the law books were sold for $404.85, and the auctioneers' fees and costs of printing, amounting to $44.50, was deducted from that sum, and the balance applied upon the two notes--on the smaller note the sum of $166.04, which discharged it, and the balance was applied on the note upon which suit was brought.

But plaintiff in error insists that the notice and sale were not in conformity with the requirements of the mortgage; that the notice is insufficient in several particulars. The notice given was this:

“MORTGAGE SALE.

CATALOGUE OF A VALUABLE LAW LIBRARY.

To be sold at auction, by Wm. A. Butters & Co., on Monday, Nov. 25th, at 10 o'clock, at their sale rooms, No. 46, 48 & 50 Dearborn street, opposite Tremont House. Terms, cash, par funds.”

There followed this notice a catalogue of the books, and the name of Wm. A. Butters & Co., appeared at the end of the catalogue. The notices seem to have been printed, posted up more than ten days before the sale, and three or four hundred were distributed in the city and circulated in the country. They seem to have been printed on the 4th and 5th of November, 1861, and the sale was made by Butters & Co. on the 25th day of the same month. The mortgage provided that if the mortgagor should sell or assign, or attempt to sell or assign the books, or any part of the same, or should fail to keep them insured, or if they should be seized under any writ, or he should fail to pay the notes and interest at maturity, then the party of the second part, by himself, his agents, attorneys or assigns, might seize and sell the goods at public auction to the highest bidder, after giving ten days notice of the time, place and terms of sale, with a description of the property, by publication in a newspaper, or posting notices in three public places, or that he might sell the same at private sale.

It is urged, that the notice was insufficient, because it does not disclose in what year it was given. In this, we think...