Cheney v. Cross , 1898 Ill. App. LEXIS 485 ( 1899 )

Mr. Presiding Justice Burroughs

delivered the opinion of the court.

This was an action of assumpsit by Andrew Cross as plaintiff, against Prentiss D. Cheney as defendant, commenced and prosecuted to judgment in the Circuit Court of Jersey County. The trial was before the court without a jury, by consent, and resulted in a finding and judgment in favor of the plaintiff for $7,242.60 and costs. The defendant brings the case to this court by appeal and urges us to reverse the judgment for the following reasons :

(1) The court erred in sustaining plaintiff’s demurrer to counts one, two and six of defendant’s second amended plea of set-off.

(2) The court erred in overruling defendant’s motion for judgment upon the pleadings.

(3) The finding of the court is against the evidence.

(4) The judgment is against the law of the case, and

(5) The damages assessed are excessive.

The declaration sets out in the first count the execution and delivery of a promissory note by the defendant to the plaintiff for $5,000, dated April 29, 1891, payable July 14, 1891, with interest after maturity at the rate of eight per cent per annum, and if not paid when due, and the note is placed in the hands of an attorney to collect, then to pay ten per cent on the amount due thereon, in addition, as an attorney’s fee, to be recovered as part of the note, or by separate suit; a failure to pay the same; and claims damages therefor; and also has added the appropriate common counts.

The defendant pleaded the general issue, and by amendments, what is called in this record the “ defendant’s second amended special plea of set-off,” with six counts, in Avhich the defendant admitted the execution and delivery by him to the plaintiff of the note sued on, and set up as a defense thereto, that the defendant also gave to the plaintiff a note of Mary D’Aroy, which is as íoüoavs :

“$5,600. Morristoavn, N. J., May 9th, 1885.

On or before five years after date, for value received, I promise to pav to the order of P. D. Cheney, five thousand six hundred dollars, with six per cent per annum interest from date until paid.

Mart D’Arot.

Indorsed: Pay to Andrew W. Cross, or order.

P. D. Cheney.”

The same to be held by the plaintiff as a collateral security for the payment of the note sued on, Avhich he calls the “ principal note,” and avers that the “ collateral note ” was a valid and binding obligation against the maker thereof; that the maker was solvent and able to pay the same in her lifetime, and when she afterward died, left an estate in Uexv Jersey, where she lived and died, which was amply sufficient to pay said note, but that the plaintiff had negligently failed and refused to collect the collateral note both in the lifetime of the maker and after her death, until the collection thereof had become barred by the statute of limitations of the State of New Jersey; whereby the collateral note had been wholly lost to the defendant; wherefore an action hath accrued to the defendant, to demand of and from the plaintiff the amount due on the collateral note; and defendant asks that the whole amount due on the collateral note be set off to defendant against the amount due the plaintiff on the principal note sued on.

This special plea of set-off has also added to it appropriate common counts, which would justify the setting off against the amount claimed in the declaration, any demand which the defendant had against the plaintiff when this suit was commenced.

To defendant’s plea of set-off the plaintiff replied, by way of replication thereto, that on February 12, 1894, plaintiff being then the legal holder of the Mary D’Arcy note for So,600, instituted in his name a suit in the Supreme Court of New Jersey, against the executor of the will of said Mary D’Arcy, as she lived in New Jersey and had died there testate; that the executor, as defendant thereon, filed a plea of the general issue and a plea of the statute of limitations, upon which pleas issue was joined by the plaintiff; that in. response to demand of plaintiff’s attorney in the New Jersey suit, the executor filed in that court in that suit a specification of the defenses that would be made under said plea of the general issue, which specification was as follows :

First. That the Mary D’Arcy note sued on in that case was founded upon no consideration and was and is not binding upon Mary D’Arcy nor her' executors.

Second. That the plaintiff is not a tona fide holder of the Mary D’Arcy note for value, and without notice of the want of consideration; and that the plaintiff is not entitled to recover thereon.

Third. That if the plaintiff is entitled to recover any sum of money on the Mary D’Arcy note sued on in that case, he can not recover more than the amount actually advanced by him before' the maturity of said note, in good faith, without notice of the want of' consideration of said note; that under the statute of Hew Jersey, the executor aforesaid, as defendant in said suit, was confined to the defense contained in said specification; that the plaintiff did prosecute the suit in Hew Jersey, with due care and diligence, so that on May 4, 1897, it came on for trial in said court, before a jury who rendered a verdict in favor of the executor, upon which that court rendered judgment against the plaintiff in bar of the action, and for costs; that the defendant, Cheney, had notice and was advised of the commencement of the suit in Hew Jersey, and all the proceedings therein; and that there was no negligence or want of care and diligence on the part of the plaintiff in handling said note, or in the institution, prosecution, or trial of the suit in Hew Jersey, or in permitting the rendition of the judgment therein.

To this replication the defendant filed a rejoinder in which he admitted that the plaintiff commenced the suit on the B’Arcy note against the executor of her estate, in Hew Jersey, and the same terminated in a verdict and judgment as stated in the replication, but denied that the plaintiff prosecuted the suit with the diligence alleged, but on the contrary he negligently and carelessly conducted himself with reference to the collection of the Mary B’Arcy note, and in the prosecution of the suit thereon; that the verdict and judgment therein was on that account adverse to him; and further denies that he had notice of the suit in Hew Jersey, and of all the proceedings therein, and advised and directed the plaintiff and his attorney in commencing and conducting same from its commencement until its termination, as alleged in the replication, but says that on the contrary, the plaintiff and his attorney, of their own accord, independent of, and without regard to a.ny advice of the defendant, commenced and managed said suit to its end, with the result stated; and concludes to the country.

Issues were joined upon this rejoinder and on the plea of general issue, and a replication was filed traversing the. facts set out in the common counts in the plea of set-off, and issue properly joined thereon.

On the hearing before the court without a jury, by consent, evidence was heard, from which it appears that by Sec. 116, p. 2552, Gen. Statutes (1895), New Jersey, that the plaintiff had the right to demand of the executor in the suit on the D’Arcy note, to file therein the specification of the defenses he intended to make to the note sued on, under his plea of general issue, and when filed to confine him in such defense to the defenses set forth in such stipulation; and that he did file the stipulation of his defenses therein as averred in plaintiff’s replication; that the defendant herein had notice of, advised and directed the plaintiff and his attorney to commence and how to manage the suit in New Jersey from its commencement to its completion; that the suit was commenced February 12, 1894, in the name of the plaintiff after the defendant (Cheney) had given the attorney of Cross the facts as to how Cross was holding the note, and advised it to be so commenced.

And it also shows that the D’Arcy note is dated May 9, 1885, and by its terms was due on May 9, 1890; that the principal note sued on was given April 9,-1891, so that it appears that the D’Arcy collateral note was overdue at the time the principal note sued on in this case was given.

The defendant, Cross, testified as a witness in this suit, that he paid as costs and reasonable attorney’s fees in theNew Jersey suit, the sum of $1,050, and that the defendant herein (Cheney) had reimbursed him therefor to the amount of $750, and that he received back from the clerk of the court in New Jersey, where said suit was tried, $58.70 of $100 that he deposited to secure costs therein; and that his expenses in attending as a witness, etc., in that suit, were $157.10. These amounts with the principal and interest of the note sued on, and the attorney’s fees provided therein to be paid in case the note was sued on, foot up the amount of the judgment rendered by the Circuit Court in this case.

While it is true that the defendant (Cheney) in his testitimony denied knowledge of the fact that Cross had transferred the D’Arcy note to the Bank, nevertheless, we think that even if he did not know that fact, yet it was fully established by the evidence that that fact did not defeat a recovery on the D’Arcy note, but such recovery was defeated solely on the ground that there was no consideration given for this note.

We also think, from a fair consideration of all the evidence, that the appellant (Cheney) did so advise, manage and assist in the suit in New Jersey, and his interest ivas such in the collection of the money due on the D’Arcy note, that he is as completely bound by the result reached in the New Jersey suit, as was the appellee, Cross, and therefore, under the doctrine announced in the case of Cheney v. Patton, 144 Ill. 373, and cases therein cited, he is effectually bound thereby.

As to the claims made by counsel for the appellant, that the Circuit Court erred in sustaining plaintiff’s demurrer to “ counts one, two and six of defendant’s second amended plea of set-off;” that the Circuit Court erred in overruling defendant’s motion for judgment upon the pleadings; and the finding of that court was against the evidence, we will say that the record discloses that the defendant could and did make all the proofs and defense under his pleadings, which the court sustained, that he could have made if the demurrer had been overruled as to those counts; that as the pleadings stood when his motion for judgment on the pleadings was made, he was not entitled to have it allowed; and the evidence justified the damages assessed.

So that on this record we are unable to find that the Circuit Court committed any of the errors urged by counsel for the appellant, to reverse its judgment, hence we affirm it.