American v. Rimpert , 75 Ill. 228 ( 1874 )

Mr. Justice McAllister

delivered the opinion of the Oourt:

We have carefully examined the evidence in this record. To our minds it wholly fails to sustain appellee’s plea of accord and satisfaction. The gist of it was, that appellee’s wife, having an interest or money coming to her from her deceased father’s estate in Germany, of an indeterminate amount, it was agreed between American, one of the appellants, and appellee, that the latter and his wife should assign that claim to American, and he should accept it in full satisfaction of the notes sued; the plea averring, that such assignment was made, and that American accepted and received such assignment in full satisfaction of the notes. It appears that some instrument in writing was executed in respect to this claim in Germany, and the court permitted appellee’s counsel, against the objections of appellants, to give secondary evidence of the contents of this instrument, without showing any notice to appellants to" produce it, or otherwise laying a proper foundation for such secondary evidence. But even that evidence only tends to show that the instrument was a mere power of attorney. This claim of money in Germany belonged exclusively to appellee’s wife, and not to him. If it was not assigned over to American by the instrument in writing, of whose real contents we can gather no knowledge from this record, then there is no evidence that it was ever assigned at all. The burden of proof was upon appellee to show the fact of assignment as averred in his plea. This he failed to do.

Error is assigned upon the giving instructions for appellee. The first and second are clearly erroneous. The first contains this proposition: “ Accord and satisfaction is an agreement between a creditor and his debtor, by which the creditor agrees to take and receive nothvng from his debtor in lieu and satisfaction of his claim.” There may have been some mistake in making the transcript. If there was, appellee’s counsel should have attended to its correction. We are bound to take the record as importing absolute verity. The second instruction is erroneous upon two grounds: (1) there was no evidence of an assignment on which to base it; (2) if the word accepted had been used in place of “ ¿xcepted,” it would still have been faulty in omitting the hypothesis that the assignment was accepted by American in satisfaction of appellants’ debt.

The judgment will be reversed and the cause remanded.

Judgment reversed.