Nelson v. Ravens , 3 Ill. App. 565 ( 1878 )

Pillsbury, P. J.

Assumpsit upon the common counts for money paid by appellees to E. Richardson & Son, upon draft drawn by them upon appellants, which appellants refused to pay.

On the 23d and 25th days of October,- 1875, E. Richardson & Son drew the two following drafts upon appellants:

“ $500.00. ' Ottawa, 111., Oct. 23d, 1875.

“At sight, pay to the order of Exchange Bank five hundred dollars, value received, and charge to account of

“Ho. 70. E. Richardson & Son.

“To Murray Helson & Co., Chicago, 111.”

“ $500.00. Ottawa, 111., Oct. 25th, 1875.

“At sight, pay to the order of Exchange Bank five hundred dollars, value received, and charge the same to account of '

“Ko. 71. E, Richardson & Son.

“To Murray Kelson & Go., Chicago, 111.”

These drafts were passed to the credit of the drawers by appellees, who were the proprietors of the Exchange Bank, and the amount thus credited was drawn out by Richardson & Son to the extent of $680.89, before notice of non-payment of the drafts reached appellees.

Richardson & Son had for a long time been engaged in the buying and shipping grain at Ottawa, Illinois. From the fall of 1874 the appellants had been their commission men at Chicago.

In June, 1875, Richardson & Son became financially involved, and Pickering, of the firm of Murray Kelson & Co., went to Ottawa, and there made a settlement with them, when it was found that they were indebted to appellants in about the sum of $1,250 dollars, for money advanced them with which to purchase grain. At this time, June 22nd, an agreement was 1 made by appellants and Richardson & Son, by which Richard- A son & Son would continue in the business of buying grain and 1 shipping the same to appellants; and appellants were to sell/ the same on account of such prior indebtedness and any future advances, and for the purpose of protecting the interest of Kelson & Co., Richardson & Son were to employ one Borland, who was to have the exclusive charge of the books, and to furnish Kelson & Co. a statement when required by them to do so, and was to receive and disburse all moneys advanced by Kelson & Co. to Richardson & Son.

On the trial George W. Ravens, one of the plaintiffs, testified that after this contract was made, Pickering came into their bank and told him that Richardson & Son desired him to speak with plaintiffs about opening an account with them; that he told Pickering that the Richardsons were hard up, and that they did not care to take hold of their business unless they could safely do so. That Pickering then informed him that Murray Kelson & Co. were going to furnish money to the Richardsons, and would see them all right, as they were going to have one of their men in the office; as long as he was there it would be all right; that Borland would draw drafts on Nelson & Co., to he signed by the elder Richardson, and Borland would check out the amounts in the regular course of business, signing checks E. Richardson & Son, by Borland, and that if the arrangement was broken up he would telegraph to plaintiffs; and that Murray Nelson & Co. would honor all drafts drawn on them as they carne in. The witness further testified that from that time to the time the drafts in question were drawn, they received and cashed drafts drawn by Richardson & Son on Nelson & Co. to the amount of $50,000. That the plaintiffs would not have allowed Richardson & Son to. check against such drafts had it not been for the promise of Pickering to honor them when presented.

Pickering as a witness denies he made any arrangement with the plaintiffs as testified to by Ravens; that while they were to furnish money and did pay the drafts presented to them, yet it was done in the usual course of business, and not by agreement with plaintiffs. He says, however, these two drafts would have been paid had not Richardson & Son been closed out by the sheriff levying executions upon the grain then on hand.

These two witnesses were the only ones who testified upon this disputed question of fact.

While it is true that the burden of proof was upon the plaintiffs, upon this proposition we cannot say as a matter of law that the court trying the case in place of the jury was not justified in finding the issue upon this point in favor of the plaintiffs. The court acting as a jury, was peculiarly the judge of the credibility of the witnesses, and many circumstances may occur upon a trial that will give greater weight to one witness than another, that cannot be reproduced upon paper: such as the appearance of the witness upon the stand, his apparent candor and fairness, the degree of intelligence and recollection manifested by him in detailing the facts surrounding a given transaction, and many others that will convince the mind of the court or jury that he is entitled to the greater credit, and of which an Appellate Court is less qualified to judge for want of equal opportunities of seeing the witnesses and observing all the circumstances surrounding them upon the witness stand. We therefore feel bound to hold that the finding of the court is sustained, that such contract was made as testified to by Ravens.

A parol promise to pay a non-existing bill was held valid by our Supreme Court in Murray Nelson v. The First National Bank of Chicago, 48 Ill. 36, a case like the one at bar in all material respects, so far as the facts are concerned, and that such promise is not within the Statute of Frauds. The same doctrine was held in Sturges v. Fourth National Bank of Chicago, 75 Ill. 595, and would seem to be decisive of the case here, as it holds that the evidence is admissible under the common counts.

The plaintiffs are then entitled to recover, but we think the court should have deducted from the amount of the judgment the sum of §319.25, that being the sum standing to the credit of Richardson & Son at the time, the drafts were returned not paid, and which was on the 11th of November, applied by appellees in the payment of a debt due from Richardson & Son prior to the agreement in June.

We think the true measure of damages in this case should be the amount due them for money paid to Richardson & Son on account of the business transactions done in pursuance of such contract.

The §47.55, amount of insurance due upon corn shipped to appellants under such contract should be allowed, making the amount properly due plaintiffs on the 25th day of October, the sum of §680.89, for which the plaintiffs should have judgment, with interest from the 25th day of October, 1875.

For the reason that the judgment is for too great a sum, it must be reversed, and the cause remanded; and if the appellees will remit in the court below all above the amount indicated, the court below will enter judgment for such sum without further trial.

Reversed and remanded.