Seacord v. Matteson , 56 Ill. App. 439 ( 1894 )

Mr. Presiding Justice Lacey

delivered the opinion of the Court.

On the trial, counsel objected to all evidence showing a claim of appellee dating back more than five years from the date of filing appellee’s claim, thus properly interposing the five years statute of limitations. The appellee by his counsel then claimed there was a note of $2,500 given by appellee to deceased, which he claimed as payment, and which would revive the barred claim and extend the limitations back nine years. The note bears date of September 21,1885, and was due in one year, with eight percent interest after FTovember 5, 1885. The evidence shows that the services claimed for by appellee commenced as far back as 1875 or 1876, and extended till near the death of Moshier, in 1888.

It appears from the evidence that all or a greater portion of appellee’s claim Avas barred by the statute of limitations before filing his claim against the estate of Moshier, deceased, September 6, 1890, or at least enough of it to leave that part of the claim unbarred, if any less than the amount received, even alloAving the time for filing appellee’s claim to have been extended by the death of Moshier one year after the expiration of the statute of limitations from the issuing of the letters of administration as provided for in Sec. 19, Chap. 83 R. S., entitled Limitations, unless the claim of appellee was revived by payment or subsequent promise.

We think there was no sufficient evidence of any payment or subsequent promise.

The court allowed appellee, against the objection of appellants, to introduce his own note of $2,500, dated September 21, 1885, to show payment by appellee on account, or, as appellee’s counsel expressed it on offering it, “ to show in connection with the evidence of Randall, continuous dealings.”

The court appeared to understand the object in view in offering the evidence better than it was expressed by appellee’s counsel, and admitted it to show payment; for it could be of no avail to show continuous dealings to arrest the statute of limitations where there were not mutual charges on each side of the account, nor was there anything in the evidence of Randall to make it proper, for he testified to nothing about the note.

Besides this, appellee paid the interest regularly on the note from year to year, which would preclude the contention that the note merely performed the office of a receipt.

hi or could the evidence of Randall that Moshier told him on September, 1885, that he, Moshier, “ expected he owed appellee enough to pay for the-land that Moshier had been inquiring the value of, and appellee was proposing to buy, and that the amount asked for the land was $2,400. Whether Moshier owed appellee or not he certainly did not pay him anything on account. He took his note and collected interest on it to his death.

The court committed serious error in permitting the note to be introduced in evidence as tending to show payment by Moshier to appellee on account, of the amount of the note given and made payable to Moshier. Ho thing in the evidence could make the note competent for that purpose, and appellee disclaims any intention of introducing it by. way of .set-off against his own claim, conceding appellants had the right to introduce it for that purpose, or to withhold it.

And appellee further disclaims the right to regard the note as settled by this litigation but admits the appellants’ right to hold it as subsisting against appellee, and does not insist that his verdict is the balance of his account allowed by the jury after giving credit for the note.

But if this verdict is allowed to stand it would be difficult, if not impossible, to determine whether the jury allowed it as a set-off against appellants’ claim or whether it rejected it. But as the note was admitted to the jury as tending to show so much payment by Moshier on appellee’s account, whether legally or illegally, if the judgment should be affirmed and the note held to be rightfully admitted for that purpose, the right of action on the note would be extinguished by this adjudication.

This judgment would be a bar, as verbal proof of a jurors’ verdict could not be introduced in any subsequent litigation to show that they rejected the note in making up their verdict. If it is held competent as tending to show payment for arresting the bar of the statute of limitations it must be so held for all purposes.

Ueither would the evidence of Bandall that Moshier acknowledged indebtedness to appellee in his presence or that of William A. Lee, that Moshier told him that he intended the §4,000 note given by said Lee to appellee and indorsed by the latter to Moshier for appellee after his death, be competent evidence to show or tend to show that the account of appellee, where the statute of limitations had run against it in whole or in part, had been revived, or the running of the statute arrested.

Meither Randall nor Lee were shown to have been Moshier’s agent to collect his claim or to represent him in the matter, hence no statement made to either of them by deceased in his lifetime could be construed into a new promise to appellee to pay the debt claimed to be due after the statute had run or partly run against it.

Counsel for appellee offered in evidence an inventory of the administrators of the estate of deceased, showing the Lee note given by him to appellee, dated June 1, 1885, for §4,000, and indorsed by him to Moshier, and containing a statement written in by appellee, who made out the inventory for the administrators, that the note was claimed by appellee. This evidence was objected to by appellants’ attorneys at the time, but the court overruled the objection and admitted it, on the ground, as the judge stated at the time, “ not to establish the 84,000 claim against appellants known as the Lee note, but for the purpose of showing, so far as it may show, the good faith on the part of appellee in presenting the Lee note against the estate.” In this we think the court erred. The good faith of appellee was not an issue nor was it his right to present claims against the estate, and, failing to prove them, set himself right before the jury for having presented them. If ever so competent for any purpose, this was evidence of his own manufacturing after the death of Moshier, and neither his testimony nor statements, verbal or in writing, were competent evidence in his own behalf against the appellants, who were defending as administrators.

The letter of appellee of November 7, 1893, to H. B. Bergen, containing statements favorable to himself, was first admitted by the court in appellee’s behalf and then afterward excluded by instructions.

The appellants claim to be damaged by this action of the court. While it should not have been admitted, as it was appellee’s own statements favorable to himself, and against the rule of law that one may not manufacture evidence in his own behalf, it will not be necessary for us to pass on the question as to whether it was reversible error, as the judgment must be reversed for other reasons.

Appellee’s services for which he claims, were performed, running for many years, and no demand ever made for them during Moshier’s lifetime, and the statute of limitations has been allowed to run against a greater part or all of them, and in this time appellee borrowed a large sum of money from Moshier and paid interest on it till Moshier’s death, and this would seem to raise a strong presumption that either he had been compensated in some way by Moshier, or that he never intended to make any charge for his services.

But it will not be necessary for us to pass definitely on the merits of appellee’s claim or the weight of evidence to sustain it as an original claim. The errors which we have pointed out are sufficient for reversal.

For the errors above noted the judgment of the Circuit Court is reversed and the cause remanded.