Phelps, Dodge & Palmer Co. v. Hopkinson , 61 Ill. App. 400 ( 1895 )

Mr. Justice Lacey

deliveeed the opinion of the Couet.

The judgment note given by D. W. Hopldnson to his son Charles, on the 16th day of May, 1894, for $4,671.38, was the foundation for the judgment rendered in his favor July 10, 1894, for $4,775.

The validity of this note and its consideration is attacked by the appellants, and it is this claim which they seek to overthrow, and to establish the priority of their claims against it and Charles’ prior judgment execution thereon.

It is claimed that David W. Hopldnson made a statement of his liabilities October 9,1893, and placed them at $1,137.83, and wrote a letter to the Phelps, Dodge & Palmer Co. asking for an extension of credit, and saying that all he owed was $100 to Tenney and what he owed to the said company; on this statement, goods began to come in May, and they were due on July first, as he understood. It is claimed that these statements were false, for he owed his son more than that amount and it is claimed that there was collusion between David W. and his son Charles to defraud the creditors of David W. It is insisted that it was fraudulent on the part of Charles to hold his note from May until July, while his father was carrying on this store, and he a clerk therein, without taking judgment on it, as he must have known that his father was in failing circumstances.

We do not think that the evidence disclosed by the record sustains the charge, nor do we think that the delay of Charles in taking judgment on the note, under the circumstances, was sufficient proof of fraudulent intent on his part. Indulgence by a creditor to his debtor should not, as a general rule, be construed into an act of fraud on the part of a creditor. Leniency of this kind should be approved rather than condemned, and especially of a son toward his father.

The second point that appellants make is that the judgment of appellee, Charles Hopldnson, mentioned above, was void for want of sufficient consideration. The facts in the case in regard to the consideration of the note from David W. to him are that it was given to take up a note of $2,200 given by David W. to his wife in her lifetime, and mother of Charles S.; that a short time before her death she gave this note to her son, excluding everybody from the room except him; that she was at the time sick and soon afterward died, and that the note given by his father was in part in consideration of this note, which was taken up by the father. Another part of the consideration was some small notes and interest amounting to $297.80, and wages claimed by Charles agreed to be paid to him by his father for his services as clerk in the store at $10 a week for 105 or 95 weeks, being $928.90.

It is insisted by counsel for appellants that the gift of the note by Charles’ mother to him was a gift mortis causa, and as there was no witness to the gift, it can not be sustained in law. There is no evidence that the note was given morUs causa, though it might have been given while appellee’s mother was sick, but there is no evidence that she was in the apprehension of immediate death. The possession of the note with his mother’s indorsement on it, was sufficient to support a common gift, and to corroborate appellee’s testimony concerning it.

It appears that the son gave no notice to his father that this note had been given to him for some time after his mother’s death and until after he became of age. The evidence is clear that the consideration of the note from David W. Hopkinson to his wife was for money received by him from her, inherited by her from her father’s estate. It is insisted, however, that as to a part of the consideration of the note from the father to the son, to wit, $928.80, being for wages due from the father to the son while the latter was a minor, was without consideration and void, for the reason that the father was entitled to the wages of the son and the agreement to pay wages was without consideration. We think the evidence sufficiently shows that the father had emancipated his son and given him his time before these services were performed, and that he agreed to pay him for them. In such case it is a rule of law that where a minor’s time is given to him and he works for his father he may recover for Ms wages. Tittman v. Tittman, 64 Penn. 480; Hall v. Hall, N. H. 290; Hubanks v. Peaks, 2 Bailey, 497; Dierker v. Hess, 54 Mo. 246. We think, however, the evidence shows sufficiently, at least, that the son was in good faith in taking the note in question in consideration in part for wages due from Ms father, and whether it should turn out in law that he had no right to take it, yet, under the circumstances, the acceptance of the note in part consideration of the proposed wages, would not be fraudulent, as there was no intention to defraud; therefore Charles S. Hopkinson, in equity, would not forfeit his entire judgment; he should receive what can be supported. The amount he received by the decree from the sheriff on his judgment would fall short of the actual amount due him on the judgment, greatly more than the amount of the wages contained in the note. Barrett v. Furges, 51 Ill. 352; Davis v. Ransom, 18 Ill. 402; Phelps v. Curtis, 80 Ill. 109. It is only in those cases that equity will declare the entire note void where the note is given in part for a fictitious consideration, with fraudulent intent as against creditors. After a full consideration of all the facts in the case we are satisfied that the decree of the Circuit Court is right. The decree of the court below is therefore affirmed.