Wilson v. Campbell

• Decision Date: 31 December 1848
• Citation: Wilson v. Campbell, 5 Gilman 383, 10 Ill. 383, 1848 WL 4173 (Ill. 1848)
• Parties: JAMES WILSONv.JAMES CAMPBELL.
• Court: Illinois Supreme Court

5 Gilman 383

10 Ill. 383

1848 WL 4173 (Ill.)

JAMES WILSON

v.JAMES CAMPBELL.

Supreme Court of Illinois.

December Term, 1848.

THIS was a suit in chancery, commenced by James Campbell against James Wilson, in the La Salle circuit court, by bill filed on the 10th of July, 1840, and on the 16th of November, 1843, by agreement removed to the Lee circuit court.

The bill in chancery stated in substance, that in the spring of 1838, said Campbell and Wilson entered into an agreement wherein said parties, in order to secure an interest in some contract with the State of Illinois for work upon the Central railroad, at the letting of the same by the State, agreed each to join with some other company, and put in their bids in connection with such company, at the regular lettings of such work by the State, and in case either succeeded in connection with any such company, the other party was to have one-half the interest so obtained; and as said parties were jointly interested in a contract for work on the Illinois and Michigan canal, it was further agreed that the unsuccessful applicant should superintend the work on the canal, and the successful applicant the work on the railroad; that the superintendence of each should be deemed equivalent in value, and that when said contracts were finished, each should share equally in the profit or loss upon the same, as the case might be.

The bill further stated that at such letting, in June, 1838, said Wilson, in connection with others, to wit: N. W. Manville, H. L. Owens, H. C. Perry, _____ Weed, and Fairchild Weed procured a contract on said railroad, and that they proceeded with the work upon the same, said Wilson superintending the work on the railroad, and said Campbell that on the canal, and that each had an equal interest therein; that subsequently to June, 1838, said Wilson sold out to said Campbell and one McFarrin, for $1100, all his interest in the canal contract, and for which he was paid in full; at the same time, it was privately agreed that said Wilson should return one-half of all the interest, being one-half of the whole contract, meaning that said Wilson should have one-quarter of all the profits on said contract.

The bill then alleged, that the reason for such private agreement, was to enable said Wilson to procure from said McFarrin and Campbell, the goods and stores necessary to carry on the railroad contract, without exciting the jealousy of said McFarrin, and to enable said Wilson and Campbell to obtain means to commence said work on the railroad, by selling to said McFarrin a portion of the canal profits; that in February, 1839, said Campbell sold out all of his and Wilson's interest in the canal contract to McFarrin for 1000 dollars, and that he, Campbell took a sub-contract on the railroad with the consent of, but unconnected with Wilson, without affecting his interest in said railroad contract.The bill then averred that all such bargains, sales, etc., were made in good faith, and with the consent of Wilson, and with the understanding that they were equal sharers and partners in the railroad and canal contracts.Complainant then stated his readiness and desire to account and settle with Wilson, but that Wilson would not, and denied owing anything to him.Complainant further averred, that at the time the railroad contract was given up on account of the stoppage of payment by the State, the amount of profits due to said complainant and Wilson on the same, was at least $8,000, and he believes $12,000, the whole of which was received by Wilson, and to one-half of which he was entitled; that said Wilson refused to pay the same, or any of it, and refused to account.The oath of the defendant was expressly waived, and then followed a list of interrogatories, and the usual prayer for relief, etc.

On the 14th of November, 1840, a demurrer was filed, and afterwards, on the 28th of January, 1842, an answer was filed of which the following is an abstract: Defendant admitted that himself, Campbell and McFarrin were interested in the canal contract; that they had several times applied for work on the Central railroad, but without success; and that a short time before the letting spoken of, Wilson and Campbell had a verbal understanding that if either of them should obtain work, the other should have the privilege, if he thought proper, of becoming equally interested with him who was successful.He denied that there was any agreement that the superintendence of one on the canal should be equivalent to that of the other on the railroad, but admitted that he agreed with said Campbell and McFarrin, to allow them for the time he spent, less, upon the canal, than said Campbell and McFarrin.

He admitted, that in June, 1838, in connection with Manville and others, they entered into a contract with the State for work on the Central railroad, and proceeded with their work on said railroad.He admitted the sale of his interest in the canal contract for $1100 to Campbell and McFarrin, but denied the private agreement alleged in said bill.He stated, that upon entering into such sale of his interest in the canal contract, Campbell expressed some unwillingness to pay the amount, he proposed to said Campbell that if he did not make the $1100 and wages he would pay back the deficiency provided Campbell would agree to give him one-half the profits over and above the sum of $1100 and Campbell's wages.He denied that his reasons for selling were truly stated in said bill, denied that Campbell ever advanced a single dollar to carry on the work on the railroad contract, or that his, Campbell's, name was ever used in connection with it to raise funds for its construction.He alleged, that soon after this sale he had a settlement with McFarrin and Campbell, and it was proved that they were indebted to him in the sum of $2800, and that the goods and stores furnished him by said Campbell were to go in liquidation of said indebtedness, and were not an advance made to carry on the work.He believed Campbell sold out to McFarrin his interest in said canal contract, for $1000 in February, 1839, and took a sub-contract on the railroad, but denied that he, Wilson, had at that time any interest in the same.He admitted that the work on the railroad stopped when the State stopped payments of estimates, but denied that his share of the profits was $8000.He averred, that when he and others took the railroad contract, it was considered too low and would prove a losing operation; that during the first six months they did not receive sufficient estimates to pay expenses, and that it was necessary to raise funds out of their own private means.He averred that Campbell never advanced anything towards said contract; that soon after the sale of his canal interest, he, Campbell, left the country for six months; that during his absence he never wrote to him, Wilson, nor did he ever express a wish to become interested in it until one month after his return, at which time and not before, he, Wilson, and the company were receiving sufficient estimates to pay the expenses.

He admitted, that each were to be equally interested in said railroad contract, with the express understanding, however, that each should contribute an equal amount to prosecute said work.He denied that there ever was any agreement that the superintendence of one on the canal should be an equivalent for that of the other on the railroad.

He averred that they were to share equally in said canal contract, and that the $1100 were not received as profits, but as purchase money.He denied that Campbell fulfilled his agreement, as he did not notify him that he considered himself interested in the railroad contract, nor did he ever advance any funds to aid in it.He denied that he ever received $8000 as profits, but only between $3000 and $4000 in Illinois scrip, and admitted that he has never paid any to Campbell.

He then alleged that the matters in said bill are remediable at law and not in equity, and prays the same benefit of this defence as if he had demurred thereto.He denied any other or further knowledge.

A replication was filed February 4, 1842.

The following is an abstract of the depositions:

Henry L. Owens, Complainant's witness.--Knows the parties.In the spring of 1838, the defendant informed the witness that Campbell, John H. McFarrin and Norman McFarrin were bidding for contracts on Central railroad and also that the witness with the defendant, C. H. Perry, Henry Weed, E. F. Weed, and N. W. Manville were also bidding; that they were bidding together, and that if either or both obtained bids, each were to be equally interested.McFarrin, complainant, and the defendant were interested in the canal contract; the defendant told witness that he had sold out his interest in the same for ten or eleven hundred dollars to complainant and McFarrin.On the day of railroad letting, the defendant told the witness that he and Campbell were to retain equal interests in the canal and railroad contracts, if either of them got any work on the railroad; that the defendant was to take charge of the work on the railroad and complainant on the canal, and their time was to be set off each against the other.Four sections were allotted to the defendant and others of the company; the name first used by them was N. W. Manville & Co.; afterwards Perry, Wilson & Co.The defendant told witness that he had offered complainant $100 for his interest in the railroad contract, but complainant would not take it.This was two or three weeks after the letting aforesaid.

In 1839, complainant sold out his interest in the canal, and with one W. Seward took a sub-contract on one of the sections obtained by N. W. Manville & Co. and continued there until about the time Perry, Wilson & Co. suspended work on the railroad.

Cross-Examination.--Does not recollect advising the complainant to bring this suit; thinks he never did.In the winter of 1839, witness...