Henderson v. Cummings

44 Ill. 325

• Court: Illinois Supreme Court
• Decided: April 15, 1867
• Status: Published

Opinion

Mr. Justice Breese

delivered the opinion of the Court:

It is to one point alone we have deemed it necessary to direct our attention, as that is decisive of this case, and must affirm the decree, and it is this: If the plaintiffs in error desired to repudiate the compromise made by their attorney, Hemenway, with the defendant in error, after they had obtained full knowledge of all the facts attending it, they should have tendered back the money received on the compromise, and then taken out their executions. Retaining the money after all the facts had become known to them through their agent, however, must be held to be a ratification of the arrangement made. A party cannot be allowed to ratify a proceeding so far as it is for his interest, and repudiate the residue. Under the arrangement made by Hemenway, plaintiffs in error received a considerable sum of money in compromise of a debt due them by the defendant in error, who is shown to have been at the time, if not in insolvent circumstances, at least in. a precarious and uncertain condition as to available means to pay his debts. Justice will not allow the plaintiffs in error to retain the fruits of the compromise, and at the same time repudiate it.

Had they been driven to the necessity of paying back this money before they took out executions, it is quite probable, from the testimony, there would have been no repudiation. Having chosen to retain the money, they must abide the terms of the compromise. It must be taken as one entire thing, and is not to be acquiesced in in part and repudiated in part.

On the question that the bill was multifarious, the interests of the plaintiffs in error being separate and distinct as to these moneys, we have to say, the objection comes too late. It was not made by demurrer in the court below, or by plea or answer, and cannot now be made here for the first time. Filing answers, and going into an examination of the testimony as to the merits of the whole matter in controversy, ivas a waiver of the objection. 1 Daniel’s Oh. Pr. (rev’d ed.) 352, where numerous authorities on the point are referred to in the notes.

Perceiving no error in the record, the decree must be affirmed.

Decree affirmed.