Allison v. Perry , 1888 Ill. App. LEXIS 55 ( 1888 )

Lacey, P. J.

The main, and perhaps the only question in this case as raised by the pleadings or controverted by the parties» is whether, at the formation of the partnership, the so-called Boyal lands of Mr. Allison, or any part thereof, were to be taken in as a part of the assets of the firm, or whether any valid agreement was made to take them in or to form a partnership without taking them in. The evidence taken before the master and preserved in the record is quite voluminous and much of it irrelevant, and we have examined it with the care which the importance of the case deserves, and have arrived at the conclusion that the appellant has failed to make out his claim. "We shall not take the trouble to go over the evidence in detail, as it would consume much time and is unnecessary. The agreement which appellant Allison claims, by which his Royal lands of one hundred acres were to be taken into the firm at fifty-five dollars per acre, was entered into and consummated about February 14, 1882, and was negotiated between him and appellee Perry,the latter, as appellantclaims, acting in behalf of Hathaway and himself.

We think, aside from the other evidence in the case, that appellant’s own letters negative any such understanding as is claimed by him to take into the partnership the Royal lands.

In his first letter addressed to appellee Perry, dated Gardner, January 9, 1883, nearly one year after the formation of the partnership, in which letter was inclosed his renewal notes for his interest in the firm, he says: “I hope you and Hr. Hathaway will take in our Royal land, and if you will it will help me out, and I am sure it is as good coal land as any of it, and, as well as some small pieces of the Royal lands, is surrounded by the Booth land, and is clear enough and will not lessen the value of the Booth land; then if you could fix it so I could on’v own one-fourth or one-sixth, 1 could get along with it. Please consider this.”

Then again, Hay 30, 1883, in another letter directed to appellees, he says: “Gents: I wish you would do one of two things for me — either take my Royal lands or let me out as a partner with yon on the Booth land. I am not in shape to pay any part unless you take in my land, and to pay interest will only make it worse for me; if there was no coal there I should not have asked you men to do either; think of this and let me know.”

This is not the language of a man who already had an existing contract with appellees to take in this land, made a year before. If such a contract existed he would have demanded its fulfillment instead of asking that the land be taken in as a matter of favor. The disclosure made by these letters entirely harmonizes with the evidence of appellees and contradicts his own testimony. The explanation given by Allison of the writing of the letters, that he did it at the instance of Perry to induce Hathaway to take in the lands, is not satisfactory.

The fact that the title of the lands of the firm were held by appellant in his own name, does not render the partnership agreement, which was in parol, obnoxious to the statute of Hands. Wallace v. Carpenter, 85 Ill. 590; Chester et al. v. Dickinson, 54 N. Y. 1; Yoak v. Clemens, 41 Ia. 95. Although an optional contract for the purchase of the partnership lands was made prior to the formation of the partnership, yet the title was acquired after such formation and for the benefit of the firm. The land was paid for on account of the firm.

The objection to the improper introduction of evidence on part of appellees is not of anyforce. It matters not whatillegal evidence is introduced on a trial in equity. The' court will consider only such as is competent, and we find abundance of evidence aside from the portion objected to, to support the decree.

The master, in allowing Allison seven per cent, interest on the sums paid out by him, did not err. This was correctly found from the bill and answer. The allowance to Hathaway of §81.38 and to Perry §96.75 for personal expenses for attention to business of the firm is not erroneous. The allowance is justified by the evidence.

The claim is set up in appellant’s reply brief that there was no partnership by the pleadings and evidence. We are satisfied that the partnership embraced the Booth and Waters lands alone.

The point made by appellant, that the decree does not provide for the collection of the notes for rent, one note for §500 due October 1, 1885, and one for §500 January 1,1886, as firm assets, is not well taken. It does so provide. Bent was only reported by the master as collected to December 1,1886. The above notes were not then collected. The decree plainly, in its findings and directions, mentions and provides for such collection for the benefit of the firm. It was not error to exclude the personal account of Perry and appellant for the accounting. The decree is therefore affirmed.

Decree affirmed.