Shbpabd, J.
The appellant was, in 1883, a member of the copartnership firm of Fredericksen, Hansen & Drummond, who were dealers in Minnesota lands, and having an office and transacting business in Chicago.
Appellee was a resident of Chicago, arid bought some lands of said firm by virtue of a contract in writing, as follows: “ This agreement, made this 31st day of October, 1883, between Fredericksen, Hansen & Drummond, of Chicago, Ill., of the first part, and Charles Miller, of Chicago, county of Cook, State of Illinois, of the second part, witnesseth, that in consideration of the stipulation herein contained, and the payments to be made as hereinafter specified, the first party hereby agrees to sell unto the second party the east half, southwest quarter of section Ho. twenty-three (23), in township Ho. one hundred and one (101) north, of range Ho. twenty-nine (29), west of 5th P. M., being in Martin County, State of Minnesota, containing, according to the United States Bureau, eighty acres, be the same more or less, at the rate of seven dollars ($7) per acre, computed to be five hundred and sixty dollars, on which the second party hath paid the sum of one hundred and eight and 80-100 dollars, being eighty dollars principal and one year’s interest in advance at six (6) per cent per annum on the balance. And the second party, in consideration of the premises, hereby agrees to pay the said first party the following sums in principal and interest at the several times named below:
Day. Month. Tear. Principal. Interest. Amount,
lstpymt. 31st Oct. 1884 80.00 24 104.00 '
2nd ' “ 31st Oct. 1885 80.00 19.20 99.20
3rd “ 31st Oct. 1886 80.00 14.40 ' 94.40
Day. Month. Year. Principal. Interest. Amount.
4th pymt. 31st Oct. 1887 80.00 9.60 89.60
5th “ 31st Oct. 1888 80.00 4.80 84.80
6th “ 31st Got. 1889 80.00 80.00
“ Fredericltsen, Hansen & Drummond also agree to accept at any time from the purchaser any or all of above named sums, and to charge interest only for time actually expired; and when the above named payments are made by the said second party, for which sum he has given his promissory note bearing even date herewith, payable on the dates named above, at the office of Fredericltsen, Hansen & Drummond, the said party of the first part will then make unto the said second party a warranty deed on the above described land, and the said second party hereto agrees and binds himself, his heirs and assigns, to assume and make the payments stipulated to be made in the contract.
“And it being mutually understood that the above premises are sold to said second party for improvement and cultivation, the said second party hereby further agrees and obligates himself, his heirs and assigns, that all improvements placed upon said premises shall remain thereto, and shall not be removed or destroyed until final payment for said land; and further that he will punctually pay said sums of money above specified, as each of the same become due, and that he will regularly and seasonably pay all such taxes and assessments as may be lawfully imposed upon said premises.
“ It is also agreed that should the party of the second part fail to make any of the payments named above, and at the times stipulated, the payments already made shall be forfeited to the said party of the first part, and this contract shall be null and void.
“ In witness of which the said parties hereto have caused these presents, in duplicate, to be executed on the day and year first above written.
Fredericks®*, Hansen & Drummond,
grantor,
Charles Hiller, purchaser.
Witness: F. H. Fredericksen, Oscar Guyer.”
Appellant testified that the signature of the firm name to the contract retained by appellee, was his.
On the contract price of $560 there was paid at the time the contract ivas entered into the sum of $80, on account of the principal sum, and $28.80 for one year’s interest in advance, at six per cent, on the remaining $480, which was divided into six deferred annual payments of $80 each and interest in advance on what remained. These postponed or deferred payments are the ones specified in the contract as first, second, third, fourth, fifth and sixth payments.
We think it fairly deducible from the evidence that appellee gave a promissory note to Fredericksen, Hansen & Drummond for the amount of each installment of $80, with interest on the whole up to the date of maturity of the installments respectively, and that those notes are what is called in the contract “ his promissory note * * * payable on the dates named above.”
It appears from the evidence that the firm of Frederick-sen, Hansen & Drummond was dissolved some time in July, 1884, and that the appellant, Hansen, removed his office to a different and separate location from that of his former partners. Before the firm dissolved, Hiller paid to the appellant, Hansen, for the firm, the note for $104, representing the installment due October 31, 1884, in advance of its maturity, but neither the exact date of payment, nor whether the note was ever surrendered to Hiller or not, appears.
On July 22, 1884, Hiller, through one Charles Shogren, paid to Hansen the note for $99.20, representing the installment due October 31, 1885, and the only evidence of the surrender of that note to Hiller lies in the following letter:
“ W. T. Hansen,
late of
Fredericksen, Hansen & Drummond,
Western Lands,
26 North Clark Street.
Chicago, III., July 24, 1884.
Charles Shogeen, 4104 Shurtleff Ave., City.
Decvr Sir:—Enclosed please find note of Charles Miller for $99.20, which you have paid for some days ago.
Tours truly
W. T. Hawses',
pp. Gr. Gr. G-roeyer.
Enclosed, note $99.20.”
The testimony of appellant concerning what occurred at the time the payment last referred to was made through Shogren, was as follows:
“ On the 22d day of July, 1881, Mr. Miller, or somebody representing him, came to my office to pay a note that was due under this contract; I told him that I did not have the note and had nothing to do with it; that it was with the Merchants Exchange Bank in Milwaukee, and that if he wanted me to I would send the money for him up to Milwaukee and get the note; he then paid the money to me; I sent it up to Milwaukee the same day and got the note back the next day and returned it. I told him that all the contracts issued by Fredericksen, Hansen & Drummond had been transferred to the Merchants Exchange Bank in Milwaukee, in trust for the purchasers, and that when they paid their money to the bank they would get their deed; that I had nothing to do with it, but I would send the money up for them if they wanted me to, and get the notes and return them to them; I did not tell him in that conversation to go to Fredericksen and pay this money, because Fredricksen had nothing to do with it; he knew that the firm of Fredricksen, Hansen & Drummond was dissolved, * * * as all the purchasers were notified by mail, at the time of the dissolution.” It clearly appears elsewhere, that the statements just recited were made to Shogren and not to Miller. Miller was not present, but had sent the money by Shogren. The next three payments were made to Fredericksen, the former partner of appellant in the firm of Fredericksen, Hansen & Drummond.
Appellee testified that he made those payments to Fredericksen because Hansen, appellant, told him after he had paid the first two notes, that he did not have anything more to do with it, and to go over to Mr. Fredericksen and pay Mm.” When the last payment "became due, appellee went again to Fredericksen’s office, but Frederick-sen being absent, and because of having heard* that there was something wrong about Fredericksen’s affairs, he refused to leave the money with Fredericksen’s son, and went again to the office of Hansen, the appellant. Fredericksen, it seems, had in fact absconded before that time. The clerk in charge of appellant’s office refused to permit appellee to go into the room where appellant was, and refused to accept from him for appellant the money for the last payment. After staying in appellant’s office for about an hour, and being unable to speak to appellant, or have what he calls a tender of the last payment accepted by the clerk to whom he offered it, the appellee went away and subsequently brought this suit without any further attempt to pay.
In addition to the payments indicated, the appellee paid taxes on the land for the years 1883 to 1887. inclusive, aggregating the sum of $40.43, and introduced in evidence receipts of the proper county treasurer for the same. Appellee’s testimony, which stands uncontradicted on that point, is that he paid the taxes through appellant for a time, and afterward through Fredericksen, or in other words, as the witness testified, they collected the taxes from him and procured the tax receipts for him.
It is apparent from the testimony of appellant that at or about the time of the dissolution of the firm of Frederick-sen, Hansen & Drummond, the contract in question was transferred to the Merchants Exchange Bank in Milwaukee, but upon what terms or conditions the transfer was made, is not susceptible of certain determination from the evidence in the case.
Appellant testified that the firm of Fredericksen, Hansen & Drummond held its claim to the land under a contract of purchase from a Scottish company, and that “ this contract, together with the duplicate contract to Miller, was turned over to the Merchants Exchange Bank when the firm of Fredericksen, Hansen & Drummond dissolved; ” that the hank paid the Scottish company the balance due upon the original contract of purchase and “ took out a deed in the name of the cashier of the bank, who has held that deed since 1887, and has at any time been able to furnish Mr. Miller his deed whenever he should pay the money.35 This is the only 'positive evidence in the case as to the circumstances under which the contract in question was transferred to the bank. All the other evidence in the case on that point is included in what appellant said he told Shogren, but he does not testify thatWdiat he told Shogren was the fact. It may be said, therefore, to be mere conjecture whether the contract had been absolutely sold and assigned, or deposited as collateral security, or transferred in trust for some purpose, to the bank. Whether the bank looked to the appellee primarily, or held his contract and notes merely as collateral security to an obligation of Frederick-sen, Hansen & Drummond, or in trust for some purpose, nowhere appears, unless the statement of appellant that the bank notified him that the payments were due from Miller, casts light upon the question.
If the relationship of the bánk to the papers in question were such as to impose any new duty upon appellee, it should have been made, by appellant, so to appear. The question of what the exact attitude of the bank may have been in the transaction is important as aiding to elucidate the duty of the appellee in the matter of to whom he was bound to make payments or tender thereof before he could sustain an action for damages, or to recover back moneys paid by him on the contract.
Appellee’s declaration consisted of a special count for damages for breach of the contract to convey, and the common counts. The.objection of appellant that the contract had not been performed by appellee by making the payments required of him, and that he made no demand for a deed at the time he offered in appellant’s office to make the last payment, we do not regard as well founded. By the terms of the contract between the parties, the appellee bound himself to make the payments specified to Fredericksen, Hansen & Drummond, at their office, and the latter agreed upon such payments being made to make to appellee a warranty deed of the land. It is clear from the evidence that all the payments provided for by the contract, except the last one, due October 31, 1889, were actually made, either to the firm of Fredericksen, Hansen & Drummond, before its dissolution, or to the appellant, Hansen, and Fredericksen, former partners in that firm, after dissolution.
“The rule seems to be.Avell settled by the authorities, that after a dissolution of a partnership, either partner may receive a debt due the firm, notwithstanding an agreement between the partners, of which the debtor has notice, that one of their number or a third person shall alone collect and pay the debts.” Gordon v. Freeman, 11 Ill. 14, and cases cited.
While, under the authority of the case just cited, the rule there laid down would not apply where ordinary partnership effects had been assigned so as to vest the legal or equitable interest of the partnership in the assignee, of Avhich the debtor had notice, there Avas not sufficient evidence in the case under consideration that appellee had notice that the contract in question had been assigned to a third person.
The only evidence tending in that direction is what was said to Shogren by appellant, as already quoted, and without evidence that it reached appellee, it Avas not notice to him. Shogren’s authority as agent for appellee appears to have been only that of a mere messenger to carry appellee’s money to appellant. His agency appears to have been limited to the one thing of paying over the money to Hansen.
The evidence failing to show that appellee had notice of any assignment to the bank, even if any beneficial interest in the contract ever did pass by the transaction, whatever it Avas, appellee had the right to make payment to Fredericksen, whethef he was so directed by appellant or not. And by the same right he was entitled to make a tender to appellant of the amount of the last payment.
It is unnecessary to determine whether the offer of the money that was made by appellee to the clerk»of appellant in his office, fulfilled the requirements of a strict lawful tender or not. He there declared his readiness to pay, and offered to pay to the clerk the money, but was told it was of no use. He demanded to be permitted to see appellant, who was in the adjoining room, and was told by the clerk that he could not see him, and, after waiting an hour, went away.
It is shown by the testimony of appellant that he and his partners had, in some fashion, transferred the contract, under which their claim to the land existed, to the bank, and that the bank had acquired title and held the land under a deed to its cashier. Neither the appellant nor his former partners were in a position with reference to the land to accept the money, and he was not at liberty to screen himself from' liability because of any technical informality in the manner of tendering the payment. For the same reason he could not insist upon the demand for a deed.
By his own statements he could not have honestly received the money and could not have given title to the land. Under such circumstances, the law does not impose the necessity of strict formalities, either of tender of payment or demand for conveyance.
By the covenants of their contract, Fredericksen, Hansen & Drummond bound themselves to give appellee their warranty deed of the land. Under that agreement the appellee was entitled to have their personal covenants as a security for the title, and he could not be compelled to give up that right. Crabtree v. Levings, 53 Ill. 526. This, it is clear, the appellant was not in a position to furnish. Although he and his partners had a right to part with their interest in the land and dispose of their contract rights as against appellee, they could not, by so doing, rid themselves of their duty to appellee without his consent. Notice to appellee of the transfer to the bank and of his consent thereto was necessary in order to have made it his duty to pay the bank, and look to it for a conveyance, and was sought to be shown by the statements of appellant to Shogren, and by a question put to appellee on cross-examination, which was objected to and the objection sustained. As already stated, Shogren’s authority was one limited to the mere act of payment, and there was no appearance of any greater authority resting in him. He could not, by an act of his, in that connection, malm a different contract for appellee, nor, as already said, were the statements made to him by appellant notice to appellee.
The question, to which objection was sustained on the cross-examination of appellee, would, if answered affirmatively, have shown that appellant told appellee that the partnership had been dissolved, and that the contract in question had been turned over to Mr. Hunnemacher, of Milwaukee, and that he was the only person having authority to receive payment or to malee performance. These facts, if disclosed, would, have been both material and competent, under the rule that “ where one party to an executory contract gives the other notice of rescission, the latter can not persist in executing his part of the contract, and charge the former with conveyances that would follow a complete execution before notice of rescission.” Horr v. Slavik, 35 Ill. App. 140, and cases cited. In other other words, appellee could not have gone on making wrongful payments after notice to him of facts, which, in law, would have amounted to a rescission, and thereby have increased the damages against appellant. It would then have become his duty to have made the damages as light as possible.
But this assigned error occurred on the cross-examination of appellee, who was the first witness called on the trial, and one of the objections to the question was, that it was not cross-examination.
Later on the appellant took the stand as a witness on his own behalf, and although he was the same person referred to in the excluded question, as having made the assumed statements to appellee, no question was asked him concerning any such statements, and he did not testify to any such conversation. Sustaining the objection on the ground that the question, was not cross-examination, did not preclude the appellant from offering to prove the same thing sought by the excluded question, when he came to put in his defense. The rulé that where an adverse ruling has once been obtained and exception taken, other offers governed by such ruling need not be made, (1 Thompson on Trials, Sec. 686, Mackin v. Blythe, 35 Ill. App. 216,) has no application to such a case. We must, therefore, assume that the error in sustaining the objection to the question, was a mere error in theory, and not one in substance. It is only substantial errors that call for a reversal of the case.
We may further say from a thorough examination of all the testimony of both appellant and appellee, we are convinced the error in no way harmed the appellant. It becomes well nigh apparent that no such statements were ever made by appellant to appellee, when in addition to the direct evidence we take into account the improbability that appellee would have gone on and made payments to Fredericksen after notice of a transfer to a third party.
The question as to whether appellee, having paid the third, fourth and fifth installments to Fredericksen without taking up his notes, is liable on the notes representing those installments which may be outstanding, is an entirely different one from that presented in this case. This action is for damages for a breach of contract, and it is no defense to appellant that appellee may be liable in another action to some one else.
Whether at the time appellee went to the office of appellant to pay the third deferred installment, the latter told the former to make payments to Fredericksen, can not be said to be clearly established. Appellee testifies positively on cross-examination : “ He (Hansen) told me that he did not have anything to do with it. He told -me to go over to Mr. Fredericksen and pay him, * * * so I went over there and paid three more notes to Mr. Fredericksen.” The only positive evidence opposed to this testimony is that of the appellant, who in answer to the question put by his counsel, “ Did you in that conversation tell him to go Fredericksen and pay this money ? ” answered, “ Why no; Fredericksen had nothing to do with it, and I could not have told him so.”
But it appears most plainly that the conversation referred to in the question was that had by appellant with Shogren at the time he paid, for appellee, the second deferred installment. But, in any event, the case was tried by the court without a jury, and no proposition of law was submitted to him. He saw and heard the witnesses, and in so far as there was any conflict in the evidence on that point or any other, it was his province to reconcile it and decide upon it, and we are unable to see but that he decided according to the fair" weight of the evidence. The finding and judgment of the court below was for $686.71. That sum seems to be $40 in excess of the damages proved by appellee. Ho mention, however, of such excess, is made by counsel in brief or argument. But if there were, we could not reverse on that ground, the attention of the court below not having been called to it on the motion for a new trial. Memory v. Niepert, 33 Ill. App. 131; Oberman Brewing Co. v. Ohlerking, 33 Ill. App. 26, and cases cited.
The judgment of the Superior Court will be affirmed.
Judgment affirmed,.
Waterman, J., dissents.