Wheat v. Summers
| Decision Date | 31 May 1883 |
| Citation | 13 Ill.App. 444,13 Bradw. 444 |
| Parties | JOSEPHINE W. WHEATv.MARY JANE SUMMERS. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Adams county; the Hon. J. H. WILLIAMS, Judge, presiding. Opinion filed September 21, 1883.
Messrs. WHEAT & MARCY, for appellant; that the verdict of the jury was against the evidence, cited Wade v. Atkins, 58 Ill. 65; Evans v. George, 80 Ill. 51; Bonnell v. Wilder, 67 Ill. 330; McFarland v. The People, 72 Ill. 368.
As to the exclusion of defendant's deposition: 1 Greenleaf on Evidence, 10th ed. § 462; Stone v. Cook, 79 Ill. 429; Robbins v. Butler, 24 Ill. 427; Craig v. Rohrer, 63 Ill. 326; I. C. R. R. Co. v. Cobb, 64 Ill. 146.
As to evidence: Ray v. Bell, 24 Ill. 450; 1 Greenleaf on Evidence, 10th ed. § 445; Stafford v. Fargo, 35 Ill. 486.
As to burden of proof: 1 Greenleaf on Evidence, 10th ed. § 74; Watt v. Kirby, 15 Ill. 202; Bonnell v. Wilder, 67 Ill. 330; Hough v. Gage, 74 Ill. 258; Kinney v. Turner, 15 Ill. 182.
As to instructions: Farnan v. Childs, 66 Ill. 544; 1 Greenleaf on Evidence, § 51; Moshier v. Kitchell, 87 Ill. 22; Nollen v. Wisner, 11 Ia. 190; Iron Mt. Bk. v. Murdock, 62 Mo. 74; C. & A. R. R. Co. v. Mock, 72 Ill. 144; Toledo R'y Co. v. Shuckman, 50 Ind. 42; Price v. Mahoney, 24 Ia. 582; Pittsburg, etc., R'y Co. v. Krouse, 20 Ohio St. 223; Bartlett v. Cunningham, 85 Ill. 24; Hough v. Gage, 74 Ill. 258; Kinney v. Turner, 15 Ill. 182; Parker v. Fisher, 39 Ill. 171.
Messrs. PRENTISS & BAILEY and Mr. J. C. THOMPSON, for appellee; cited Arnold v. Franklin, 3 Bradwell, 141; Pearson v. Johnson, 7 Johnson Ch. 26; Blanchard v. Williamson, 70 Ill. 647; Ball v. Benjamin, 73 Ill. 39; Eddy v. Roberts, 17 Ill. 505.
The evidence supports the verdict and should not be disturbed: Creote v. Willey, 83 Ill. 444; McKichan v. McBean, 45 Ill. 228; Keith v. Fink, 47 Ill. 272; Hope Ins. Co. v. Lonergan, 48 Ill. 49; McCarthy v. Mooney, 49 Ill. 247; Morgan v. Ry??rson, 20 Ill. 343; Toledo, etc., R. R. Co. v. Moore, 77 Ill. 217 Kightlinger v. Egan, 75 Ill. 141; Summers v. Stark, 76 Ill. 208; Simons v. Waldron, 70 Ill. 281; McNellis v. Pulsifer, 64 Ill. 494.
Where the testimony is conflicting and there is evidence to sustain the verdict, it should not be disturbed: Black v. Crom, 24 Ill. 48; Sourette v. Crouthers, 29 Ill. 487; DeClerg v. Mungin, 46 Ill. 112; Wallace v. Wren, 32 Ill. 146; Sheeran v. C. & M. R'y Co. 48 Ill. 523; Bunker v. Green, 48 Ill. 243; White v. Clayes, 32 Ill. 325; Hayes v. Houston, 86 Ill. 487; Hunett v. Estelle, 92 Ill. 218; Joequin v. Davidson, 49 Ill. 82; Carpenter v. Davis, 71 Ill. 395; McNally v. O'Brien, 88 Ill. 237; Blanchard v. Pratt 37 Ill. 243; Dishon v. Schorr, 19 Ill. 59; Beseler v. Stephani, 71 Ill. 400; Collighan v. Evans, 71 Ill. 397.
This was a suit brought by appellant against appellee to recover upon a promissory note, for the sum of $1,500, made payable to one William G. Ewing, by whom the same was indorsed after maturity. It appears from the evidence that said Ewing had been in partnership, in the practice of the law, with Alexander E. Wheat, the husband of appellant, and one Elisha B. Hamilton; that in a suit that sprang up between them relating to their partnership affairs, some testimony was taken as to the consideration and the amount then due upon the note in controversy in this case; that appellee was examined as a witness touching the question then in controversy, and that in the course of her examination she testified that the note was given for the services of Mr. Ewing, in the trial of a case in Missouri, wherein one Ambrose Coe stood indicted for the murder of a sister of appellee.
When sued upon the note she interposed several pleas in her defense, one of which, the fifth, was a plea of total failure of consideration for the note sued on. This plea set up the fact that the sole and only consideration of the note was an agreement entered into by said Ewing with appellee relating to his fees in the murder case in Missouri, about which appellee had testified in the former suit. It alleges that before, and at the time of the making of said note, said Ewing had been and was the attorney for one Nathaniel Summers in said suit; that he had already earned some fees therein; that appellee being desirous that said Ewing should not make any charge against said Nathaniel Summers for his services already performed, or that he might in the future perform therein, it was agreed between appellee and said Ewing that if appellee would give him her note for $1,500 for his fees in said cause, he (Ewing) would never make any charge or claim against said Nathaniel Summers for his services in said cause; that in consideration of this agreement on the part of Ewing and for no other consideration whatever, the note in suit was given; that after the maturity of said note, said Ewing brought suit against said Nathaniel Summers for the sum of $2,000 for his fees in the said murder case; that the same was settled and compromised for the sum of $500 paid by said Nathaniel Summers to said Ewing, in full satisfaction and discharge of his fees aforesaid, wherefore it is alleged that the consideration of the note sued on has wholly failed.
To this plea two replications were filed by leave of the court. First, that the note was not given for the consideration alleged in the plea and for none other. Second, that appellee assented to the bringing and prosecution of the suit of said Ewing against said Nathaniel Summers in the plea mentioned. Issues were joined upon both these replications, but we are of the opinion that the second presents an immaterial one, and that the court did right in so treating it, as was done by its refusal to give the ninth instruction asked by counsel for appellee.
The only issue to be tried upon this plea was that raised by the first replication. On the trial, appellee testified in support of her plea and gave some very cogent reasons why the alleged agreement had been entered into between her and Ewing. Her father, the said Nathaniel Summers, whose daughter had been murdered, and who had employed Ewing to prosecute her alleged murderer, was old and much harassed, so that at times it appeared as if he was losing his mind, and in order to relieve him of this additional source of trouble, she gave the note in question, upon the sole consideration of Ewing's agreement not to call upon him for fees, but to look to her alone; but at the same time he was to take what her father voluntarily offered and to credit the same upon the note.
On the part of appellant, Mr. Ewing testified that the note was given at a time when he talked some of going out of the murder case, in consequence of the great expense it was entailing upon appellee's father, and from the fact that there were other able lawyers engaged in the case; that he had never had any definite understanding with him about fees, and that he so stated to appellee, and that he thought it better before going farther to have some understanding concerning his compensation; that thereupon appellee requested him not to see her father, and proposed, in connection with her sister, to secure his fees, but upon further consideration proposed to give her own note alone for his fees in the case, which he accepted. He denies having made the agreement set out in the plea, but says appellee did not want her father spoken to about it until after the murder trial, but then he was to be at liberty to call upon him for his fees.
Upon this point of disagreement in their testimony between the two principal parties to the transaction, the defense set up by this fifth plea hinges. Each party had a right to all legitimate evidence bearing upon this pivotal point in the case. In support of the testimony of Ewing, appellant called her husband, A. E. Wheat, who testified to certain declarations made by appellee concerning the note in suit, in which it was claimed she had admitted the balance of the note to be due and payable, after crediting the $500 paid by her father in settlement of the suit against him in favor of Ewing.
These were the only witnesses called by appellant. Thereupon appellant's counsel offered in evidence the deposition of appellee taken in the case of Wheat v. Ewing and Hamilton, before mentioned, and the same was excluded. To this ruling of the court exception was taken in apt time, and it is now assigned as one of the causes why the judgment should be reversed.
The introduction of the note in evidence made a prima facie case for appellant. The plea of a total failure of consideration was an affirmative averment, which threw upon appellee the burden of proving what the real consideration of the...
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