Young v. Foute
| Decision Date | 31 January 1867 |
| Parties | HARRISON YOUNGv.SARAH FOUTE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of De Witt county; the Hon. JOHN M. SCOTT, Judge, presiding.
This was an action of assumpsit, brought by the appellee against the appellant, in the Circuit Court of De Witt county.
The cause was tried by a jury, and verdict given in favor of the plaintiff for $1,150. The defendant made a motion for a new trial; whereupon, the plaintiff remitted $119 of the verdict, and the court overruled the motion for a new trial, and rendered judgment for $1,031. The cause is brought here by appeal.
The facts are fully stated in the opinion of the court.
Mr. C. H. MOORE, for the appellant.
Messrs. WILLIAMS & BURR and E. H. PALMER, for the appellee. Mr. JUSTICE BREESE delivered the opinion of the Court:
This was an action of assumpsit brought in the De Witt Circuit Court, to the May Term, 1866, by Sarah Foute against Harrison Young, on five promissory notes, of the date of January 1, 1856, made payable by defendant to plaintiff, and alleged to be lost. The declaration counted on each note, and there was a count on all the notes tracing their delivery to one Mastin for collection, who delivered the notes to the defendant, to be redelivered by him to the plaintiff, and a failure by him to redeliver them. The seventh count was on the note described in fifth count, due in nine years from date, for two hundred dollars, alleged to have been left, unindorsed, in plaintiff's trunk, and lost.
The eighth count was for land sold and “delivered” by the plaintiff to the defendant. A notice was served on the defendant to produce on the trial the five notes described in the declaration, all of them described as non-bearing interest notes.
The plea was the general issue with notice of set-off, accompanied by a bill of particulars. The cause was tried by a jury, and a verdict rendered for the plaintiff for eleven hundred and fifty dollars. A motion was made for a new trial, whereupon the plaintiff remitted one hundred and nineteen dollars of the verdict, and the court overruled the motion for a new trial, and rendered judgment for the plaintiff for one thousand and thirty-one dollars.
To reverse this judgment, this appeal is taken, and it is assigned for error, that the court admitted improper evidence for the plaintiff, excluded proper evidence for the defendant, gave improper instructions for the plaintiff, refused proper instructions for the defendant, the court should have set aside the verdict, and granted a new trial, the court should have arrested the judgment, and should not have permitted one of the notes to be withdrawn after verdict and judgment upon it.
In lieu of an account, and as a basis for the eighth count for land sold and ““delivered,” there was filed with the declaration, what was supposed to be a record of a suit in chancery, in the Macon Circuit Court, in which the defendant was complainant, and the plaintiff and others defendants, the object of which was to obtain a decree of that court, for the specific performance of a contract made by defendant with Jacob Foute, in his life-time the husband of plaintiff, for the conveyance of a certain tract of land in that county. By this contract it appears Jacob Foute agreed to sell defendant his farm of one hundred and eighty-two acres, for which defendant agreed to pay two thousand and fifty dollars, and had paid thereon in cash, fifty dollars. The remaining two thousand dollars defendant agreed to pay as follows: one thousand dollars to the plaintiff, in payments according to the tenor, and in the amounts, of the several notes sued on, they to be without interest, and the same amount to Jacob Foute. It was agreed, that defendant should hold all the notes until he received a warranty deed for the land; when he did receive it, he was to deliver the notes to Jacob and Sarah Foute, the plaintiff. Jacob Foute having died, the bill was filed for a conveyance, and Sarah Foute, and the heirs at law of Jacob Foute, made defendants, and these notes were produced by complainant Young in court, delivered up, and a decree passed in his favor for a deed for the land so sold, which the master in chancery of Macon county was directed to execute and deliver to Young. The notes are made an exhibit in the bill, and are the same as those described in the declaration in this cause.
The first objection made by appellant is as to the admission in evidence of these chancery proceedings. The clerk of the Macon Circuit Court certifies, under the seal of the court, that they are correct copies, as appears from the record and files of his office. We see no substantial objection to the record as evidence, for the purpose of proving what was sought to be proved by it, namely, the identity of the notes, and the fact that they were given for land sold.
Notes on Young, of the amounts specified in the declaration were purchased by Hiram Mastin of Sarah Foute for six hundred dollars, which he agreed to secure her by his own note and a mortgage on land. When the trade was about to be consummated Mrs. Foute retracted, and told Mastin to deliver the notes to Young, and he would hand them to her. Mastin states distinctly that the notes so delivered to him bore interest from date, and consequently could not have been the notes in suit, for they bore no interest. The objection to this testimony on this point was properly overruled. It was a question of identity, and should go to the jury with the other proofs on that point. The notes thus given to Mastin he delivered to Young on Young paying him two hundred and thirteen dollars. When the notes were given to Mastin, Mrs. Foute stated that from one hundred and sixty to two hundred dollars had been paid on them, and when she declined to comply with her contract made with Mastin he told her she could not get Young's notes, to which she replied that he (Mastin) could not collect them, for she and Young had had a settlement of their accounts and she found Young had paid the notes. Mastin still holding the notes, he and Young were about to have a lawsuit about them when Young agreed to give Mastin two hundred and thirteen dollars...
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