Armstrong v. Stebbins , 218 Ill. 641 ( 1905 )

Mr. Justice Ricks

delivered the opinion of the court:

The facts in the case, as disclosed by the record, are substantially as follows: It appears that in the spring of 1895 one Matthew White failed. Judgments were entered against him in favor of various parties, among them being two in favor of appellee and two in favor of R. S. Parker & Co. Appellant’s son, B. S. Armstrong, was a member of the firm of R. S. Parker & Co., and the owner of an undivided one-half interest in the Parker & Co. judgments. White’s property was all taken under foreclosure proceedings, and there seemed to be little left for anybody. Benjamin Armstrong, who was at that time residing in Chicago, began a correspondence with appellee with the view of going together and making some arrangements to redeem the White land from the foreclosure sales, and after there had been some correspondence with them in reference to the matter, Benjamin Armstrong had his father, the appellant, meet Stebbins, and gave his father full power and authority to make any deal with Stebbins that appellant desired. After appellant and appellee had talked the matter over, it was agreed to form a partnership and use their own judgments, and any other judgments they could buy or use in any manner, to redeem, and to make as much as they could by such redemption, with the understanding that, regardless of whose judgments might be used, they would share the profits and the proceeds of the amount recovered on a four-ninths and five-ninths basis, apr pellant to get five-ninths and appellee four-ninths. Pursuant to this agreement appellant and appellee went to the National City Bank and borrowed $5000, giving their joint note, and made redemption of a certain tract of land which had been sold under mortgage. The evidence discloses that at the time of the first redemption appellee did not have a sufficient amount of money with which to make the redemption, and was informed by Armstrong that it would make no difference,— that he would put up the amount required above the $5000 for that redemption and Stebbins could send him his part of the money in the near future. The redemption was made, under the Benjamin Armstrong judgment. They next entered into an agreement with R. S. Parker that he should assign to them the judgment held by him, on the condition that they give him one-third of what they recovered on the judgment. They then redeemed a 255-acre tract from one Allen, who had foreclosed a mortgage, and the amount required to redeem this 255-acre tract was $5872.34. In their negotiations to obtain the Parker judgment both the parties actively participated, appellee having gone to Chicago for that purpose. In this transaction they also used the $5000 that was gotten from the bank on their joint note. After making the redemption of the 25 5-acre tract it was put up for sale and bid in by another party, who paid the Parker judgment, together with costs and interest, and $500 in addition to be applied on a judgment in favor of appellee, on an agreement that they would not again redeem from that sale. The amount, as shown, that was realized under this transaction was $3148.88. Appellant took the profits under these judgments and retained them, and refused to account to Stebbins. It appears that afterwards appellant and appellee entered into a written agreement on the 18th of March, 1898. The contract was solely in reference to money realized out of a 327-acre tract of land sold March 18, 1898, and the manner in which the money was to be distributed. It was entirely distinct from the transactions had under the verbal agreement.

It is first insisted that there is a variance between the allegations of the bill and the proof, and that therefore it was error to enter the decree as entered by the chancellor. No objection or exception to the master’s report raised any question of variance as to the allegations of bill and proof, which was necessary in order to have that question reviewed in this court. McAuliffe v. Reuter, 166 Ill. 491; Crone v. Crone, 170 id. 494.

Appellant contends that there was no partnership relation existing between them concerning the transactions in which $5000 was borrowed at the bank; but the evidence discloses that both parties signed the note at the bank and that appellee paid the interest on the note at two different times, and the money was afterwards used in other transactions in which there was no question but that both parties were interested. The master found, as a matter of fact, that appellee was interested in the second transaction, and that appellant should account to him for the profits realized out of the same. The record discloses that appellee is sustained by all the documentary evidence produced, which consists of various letters written by appellant, and is also corroborated by disinterested witnesses. We think the record fairly discloses that there was a partnership existing between them in reference to the transaction; and while certain money was sent appellant by appellee shortly after the contract was entered into, to apply on the first redemption, it was returned with instructions to retain it and obtain other money for the purpose of making other redemptions. And from appellant’s letters it was apparent that he had secured sufficient money to carry the deal through on his own accord, yet there was nothing said in the letters that would lead appellee to believe that appellant had changed his mind in reference to allowing appellee his share of the profits that might be realized out of the transaction. The master and chancellor refused to allow appellee any benefit or share of profit in the first transaction, and as he assigned no cross-error we are not called upon to consider it.

Appellant insists further that a settlement was had of all their transactions, in which he paid appellee $550 in full settlement of all their controversies; but the evidence discloses that the settlement was, in fact, a settlement only of a single transaction had under a written contract between them entered into on March 18, 1898, and in which the transaction in controversy was not mentioned, and nothing was said or done by either party to lead appellee to believe, or that should satisfy a court, that it was a settlement of all matters between them.

After a careful examination of the record we are of the opinion that the decree of the circuit court is equitable between the parties and sustained by the evidence. Other propositions raised by the answer of appellant are not argued and therefore considered waived. The judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.