Prather v. Vineyard

9 Ill. 40

Opinion

The Opinion of the Court was delivered by

Purple J.

Footnotes

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This was an action of assumpsit, commenced in the Fulton Circuit Court by the appellee against the appellant.

The declaration contains three special counts, and the common count for money had and received.

The first count charges that one Reason Prather, being indebted to plaintiff below, (who is appellee in this Court,) in the sum of one hundred and fifty dollars, for the purpose of paying the same, deposited in the hands of the defendant below, (appellant in this Court,) certain notes, describing them, for collection; and that appellant promised to collect said notes within a reasonable time and pay over the proceeds to appellee, or return said notes to said appellee on demand. And the count contains an averment that such reasonable time had elapsed, and that the said notes, and the proceeds of the same had been demanded; that the money had not been collected nor paid to appellee, nor the notes returned, and that his debt remained unpaid.

The second count states in substance, that Reason Prather was indebted to appellee in the sum of one hundred and fifty dollars, and being so indebted, placed in the hands of appellant certain notes, describing them, and that appellant, in consideration of the premises, promised the appellee to collect the notes and pay over the same to him in a reasonable time; that a reasonable time has elapsed, that the notes had not been collected and the money paid to the appellee, although they might have been by the exercise of due diligence; and that Reason Prather had not paid the said debt of «• 150.

The third count alleges the indebtedness of Reason Prather as in the first and second counts, and that the notes were placed by Season Prather in the hands of appellant, in part payment of said indebtedness; and that appellant, in consideration of the premises, promised the appellee to collect the same, and pay the money to the appellee on demand; that appellant did collect the money, hut refused to pay it to appellee.

The appellant pleaded,

1st, non assumpsit;

2nd, that the promise was to pay the debt of a third person, and, that there was no note or memorandum in writing, signed by the party to be charged. Replication, that there was a sufficient note or memorandum, &c.; concluding to the country, upon which issue was joined;

3rd, that the notes were deposited in the hands of appellant without any contract for their collection, and were afterwards returned to Reason Prather at his request, Replication, that there was a contract between appellant and appellee at the time the notes were deposited with appellant in relation to their collection, concluding to the country, upon which issue was joined;

4th, that appellant returned the notes to Reason Prather, who collected them; and

5th, that it was not in appellant’s power to collect the notes.

A general demurrer to the fourth, and a special demurrer to the fifth plea, stating for cause of demurrer that said fifth plea amounted only to the general issue, was interposed, which was sustained by the Court, and the appellant abided by his demurrer. The cause was tried by a jury. The appellee offered in evidence, and read to the jury a receipt, in the words following:

“Received of R. Prather, a forty five dollar note on Enoch Stewart One for thirty dollars One on Gabriel & Abraham Hollingsworth for ten dollars Charles Richardson ten Calvin Joins thirty dollars left in the house of Darias Prather for collection of which I do agree to pay George Vineyard when collected given under my hand October 27th 1842.

Darius Prather.”

To the introduction of this receipt in evidence, appellant objected, and excepted to the opinion of the Court.

The evidence on the part of the appellee then showed, that appellant admitted that Reason Prather, at the time the receipt was given, was indebted to appellee in the sum of one hundred and fifty dollars upon a promissory note which was not produced at the trial. And the counsel for the appellant objected to the admission of any evidence of such indebtedness, unless the note was produced, which objection was overruled, and an exception taken to the opinion of the Court.

The appellee’s evidence further showed that the notes, or the money due upon them, had been demanded of appellant before the commencement of the suit. It further appeared from conversation between the parties, which occurred at the time the demand was made, that appellant had returned the notes to Reason Prather, who had collected some or all of them; and that appellant contended at this time, that he was not bound to collect the notes, unless he received a power of attorney from Reason Prather to do so; and in another conversation with one of the appellee’s witnesses, in which appellant admitted that he was to collect the money due on the notes and pay the same over to the appellee; he further stated that the original contract was between him and Reason Prather, and, that there never was any contract between him and appellee about the notes; and, that he was acting only as the agent of Reason Prather, and for the purpose of obliging him.

Numerous instructions were asked by the counsel on either side, some of which were given and others refused. As applicable to the case made by the evidence, the Court perceive no substantial legal objection to the instructions; but as the decision must turn upon another question, we deem it unimportant to notice them particularly, or to express any definite opinion as to the propriety of their being given or withheld.

The jury returned a verdict in favor of the appellee. The appellant moved for a new trial and in arrest of judgment, which motions were overruled, and appellant excepted.

The ruling of the Circuit Court in sustaining the demurrer to the fourth and fifth pleas of the appellant was unquestionably correct; and this demurrer could not, as is contended by the appellant’s counsel here, have been carried back and sustained to the declaration, for the reason that the first, third and fourth counts thereof set forth, each, a good cause of action against the appellant.

The Court is of opinion also, that the evidence of the appellee was sufficient to warrant the verdict of the jury, provided the same had been applicable to the counts of the declaration, or either of them last above mentioned. But upon examination, it will be found that such is not the case. The declaration makes one case and the evidence another. The allegations and the proof do not substantially correspond.

The allegation in the first count is in the alternative, that appellant promised to collect the notes, or return them on demand. The evidence is that he promised to collect only and pay over. This is a fatal variance. 1 Phil. Ev. 206, 208; 2 do. 509, note 401.

The third count alleges that Reason Prather deposited the notes with appellant in payment of his indebtedness to appellee; in consideration of which, he, appellant, promised appellee to collect the same and pay the money to appellee; and that he did collect the same, but refused to pay the money to appellee. The fourth is for money had and received. To support these two last counts there is no evidence whatever.''

The second count is considered defective, for the reason that it is not stated that the notes were deposited with appellant for the use, or to be collected for the appellee.

For these obvious reasons a new trial should have been granted.

The Statute of Frauds, which has been pleaded and set up in this action, is entirely inapplicable to the case made by the evidence. - If the notes were left with the appellant by Reason Prather to he collected to pay a debt due to the appellee, and the appellant undertook the collection of the same, and promised to pay over the money when collected to appellee, this is no undertaking to pay the debt of a third person within the spirit or letter of the Statute of Frauds; but it is an agreement by two persons for the use and benefit of a third, upon which such third person may maintain an action against the party promising, without proof of any written memorandum or consideration moving between the promissor and the party for whose benefit the contract has been made. It is a trust, which having once undertaken to execute, and entered upon the performance of the same, although voluntarily and without consideration other than such as the law implies, he is bound in law and equity to complete.

We do not perceive that the evidence objected to was improperly admitted. It tended to prove the issues which had been made.

The receipt signed, by appellant describes a portion of the same notes described in the declaration as having been placed in his hands for collection. The suit is not brought upon the instrument itself, nor does the declaration purport to set it out or describe it. It is introduced in the same manner as the testimony of a witness might be, as evidence of the promise made by the appellant to collect and pay the money claimed in the declaration. If an instrument is neither set out in the pleadings by its tenor, nor described by its legal import, but is merely brought forward to sustain an allegation, not referring to it expressly in any way whatever, a variance will not be fatal if the substance of what is alleged be proved. 2 Phil. Ev. C. & H. notes, 528; 1 Starkie’s Ev. 432. It was also competent for the appellee to prove the indebtedness of of Reason Prather to him by the admission of the appellant. The suit was not upon the note which had been given for this indebtedness. The promise to collect and pay .the money, and not the- indebtedness of Reason Prather, was the gist of the action.

.The general rule, that the best evidence must be given of which the nature of the thing is capable, has its exceptions. “To prove a plaintiff’s demand satisfied, the defendant may-give evidence of an admission by the plaintiff to that effect, though it should appear that the plaintiff also signed a receipt; and it may be said the receipt would be more satisfactory proof.” 1 Phil. Ev., 220.

“The acknowledgment of a defendant that he entered upon premises under an executory contract of purchase from the plaintiff, may be proved without producing the written agreement; and such acknowledgment will have the effect of preventing the defendant from contesting the plaintiff’s title.”

“In an action against a sheriff for the misfeasance of his deputy, the admission of the sheriff is sufficient evidence of the deputation, without producing the deputation or warrant under which he acted.” 2 Phil. Ev., C. & H. notes, 556-7.

This is not an attempt to prove the contents of a written instrument by verbal testimony, but an offer merely to prove a fact, which existed as well before as after the note had been given; that Reason Prather was indebted to the appellee. As between Reason Prather and the appellee, the note would be the best evidence of this fact. But as between the appellant, who was a stranger to the contract, and the appellee, the note, if produced, would be but an acknowledgment of Reason Prather that he was indebted to appellee in that amount; and it would be a most unreasonable rule of law, which would not regard the admission of a party to a suit as high authority in law, and as conclusive in its effects in evidence against the party making it, as the written declaration or statement of a third person.

The judgment of the Circuit Court is reversed with costs, and the cause remanded with directions to that court to award a venire de novo.

Judgment reversed.

Wilson, C. J. and Denning, J. did not sit in this case.