Snydacker v. Magill , 24 Ill. 138 ( 1860 )

Catón, O. J.

We find no just ground for complaint of the instructions of the court, and if by the true construction of the contract as proved, the plaintiffs were entitled to recover the excess of the price for which the engine sold, over the amount of the debts due the defendants before such excess was received of the purchaser, then we think the verdict was right, and the judgment must stand, for the proof satisfactorily shows that the plaintiffs found the purchaser, and that the sale was made through their instrumentality. But we think the proof does not show such a contract. Shufeldt is the principal witness to prove the contract. He' says: “ It was stated by one of the parties, I think by Magill, that the engine cost a good deal more than the debt, and if sold, it ought to go to them after paying their debt, if it brought more than their debt. Defend» ants said, all they wanted was their money, and that if Magill and Pickering would sell the engine before spring, the surplus moneys should go to them after paying their debt and interest.” Again he says, the defendants were to be made whole' for their debt, and that thirty dollars was to be allowed for the storage of the engine till spring. Moore tells us that the engine was sold for $2,700, on time, and that but $1,000 had been paid, although all the money was due when this action was brought. He says the proposition for the sale was $2,400 cash, or $2,700 on time. The latter offer was the one accepted by the defendants. The defendants agreed to pay the surplus to the plaintiffs after paying their own debts and the storage. Until the money was realized for the engine, there could be no surplus to pay over. The defendants were first to be made whole before any surplus was to be paid over to the plaintiffs. The proof shows that they have not yet been made whole. They might, by selling the engine for $2,400 cash, have reimbursed themselves, and had a small balance left for the plaintiff. But they sold it for the larger price, on time, solely for the benefit of the plaintiffs, thereby delaying their own demands, and it would hardly seem to have been in the contemplation of the parties, that they should be bound, not only to wait for their own money, but also to advance the surplus going to the plaintiffs. If it be said that the defendants may forever neglect to collect this surplus, and thus perpetually defeat this cause of action, the answer is, that the duty no doubt devolves upon the defendants to use reasonable diligence in the collection of this money, and for the neglect of this duty, the plaintiffs would no doubt be entitled to their remedy.

We think a new trial should be granted. The judgment is reversed and the cause remanded.

Judgment reversed.