Davenport v. Haynie , 30 Ill. 59 ( 1862 )

Walker, J.

The decree in this case is not questioned, in so far as it requires the master to convey the property in controversy to defendants in error. It is, however, insisted that it is erroneous, in requiring the plaintiffs in error to pay rents to defendants in error, until they are reimbursed for improvements made on the property. It is admitted, that when Abner F. Haynie and James Marshall entered into partnership, that the property belonged to the former; that alterations and additions were made, so as to render it more convenient for their business, and that the property was occupied by them during the continuance of the partnership. Upon a dissolution it was agreed, that Marshall should repay Haynie his capital, with fifty per cent, advance.

It is insisted by Marshall, that he was to retain the property until his advances for repairs were reimbursed by one-half the rents. One witness so testified. That Dr. Haynie should have made such an agreement, is, at least, highly improbable. The property was his own, he was to pay for the improvement, and no reason is perceived why he should make a gratuity of such a sum to another, having no claims upon him. It seems much more reasonable to suppose the witness to have been mistaken, or that he has forgotten what was said by the parties, than to suppose that such a sum would have been given without any apparent reason, or without some equivalent. Again, another witness testifies that Marshall admitted to him that he was to pay four dollars a month during the first year, and six dollars- per month afterwards. Nor does it seem that he limited or in any manner qualified this admission. If only half of that sum was to have been applied on the repairs, it is strange that he failed to state that fact at the time. We think the evidence fails to show that the rent was to be applied upon the repairs. That such was the arrangement for the use of the building during the continuance of the partnership, is probably true. And it is probably true, that all the matters relating to rents and repairs were adjusted up to the time of the dissolution.

But the decree is manifestly erroneous, in requiring all of the defendants to pay the amount of rents ascertained to be due to defendants in error.. They did not occupy the property jointly, but severally, at different periods; and each plaintiff in error could only be liable for the rents which accrued whilst he occupied the property, except James Marshall, from whom the others leased. He was undoubtedly liable for all the rents, during its occupancy after Dr. Haynie’s death, and each of the others for all rents which accrued after they were notified not to pay it to Marshall. There seems to be no evidence to hold them jointly liable for all the rents.

For these reasons the decree of the court below must be reversed, and the cause remanded.

Judgment reversed.