| Ill. | Oct 31, 1889
Shops delivered the opinion of the Court:
The principal question presented by this record is one of fact. We shall not undertake to review and analyze the evidence, which is very voluminous. It is enough to say, that we have given it careful consideration, and agree with the Appellate and circuit courts in their findings of fact. There is much of the evidence that is irrelevant, but it will be presumed, in the absence of anything showing to the contrary, that the master and the court below acted only upon such as was properly admissible under the issues.
The evidence is amply sufficient to show the formation of a partnership between the parties for the purchase of coal lands, and to develop the same with a view to profit. It is probably true that Allison expected that the Boyal lands, or as much as he might acquire good title to, would be taken in as assets of the firm, at $55 per acre, and he credited therewith, and it was doubtless in view of this expectation that he entered into the partnership. The title to the Booth land was, by mutual consent, taken in the names of Perry and Hathaway, to be held in trust for the firm, and it was so tre'ated by all the parties. Upon the first payment of $5000 made to Booth by Perry and Hathaway, Allison gave his note to them for his one-third part thereof, and when, in March, 1882, the second payment of $10,000 was made, he likewise made his note to Perry and Hathaway for one-third of that sum. On the 9th of January, 1883, Allison obtained a renewal of these notes, and gave to Perry and Hathaway his note for $5000, payable in six months, for the principal sum, and also his other note for $301.31, being for accrued interest on his former note, due ,one day after date.
There can be no question that Allison was an equal partner with Perry and Hathaway in the Booth lands. The principal point of contention, however, is, whether the Boyal lands, held by Allison, or any part thereof, were to be taken in as assets of the firm. Allison testifies that they were; Perry is equally positive that they were not. He claims that he had no authority from Hathaway to make any agreement to purchase the Boyal lands, and so informed Allison. If the agreement was as Allison contends, his giving his notes could only be accounted for upon the theory that he was to clear the title of record to the Boyal lands. This, it is apparent, was done before the execution of the notes given in renewal, as before mentioned. It will be seen that Allison claims that the title to the Boyal lands was clear before January 9, 1883. On that day he wrote a letter to Perry, in which he transmitted said renewal notes, which is as follows:
“Mr. I. N. Perry, Cashier, Rochelle, Ill.:
“Dear Sir—You will find note signed by me, $5000, and one for $301.31 int. one (1) day. We have had some hard luck with our B. B. work, and compelled to pay several thousand that we did not expect to, is why I don’t send draft for this interest. I hope you and Mr. Hathaway will take in our Boyal land, and if you will, it would help me out, and I am sure it is as good coal land as any of it, and as well, as some small pieces of the Boyal land is surrounded by the Booth land, and all is close enough, and will not lessen the value of the Booth land; then if you could fix it so I could only own one-fourth or one-sixth, I could get along with it. Please consider this.”
Shortly afterward, May 30,1883, he again wrote, directing to “Messrs. Perry & Hathaway,” as follows:
“Gents:—I wish you would do one of two things for me: either take my Boyal lands, or let me out as a partner with you on the Booth land. I am not in shape to pay my part unless you take in my land, and to pay interest will only make it worse for me. If there was no coal there I should not have asked you men to do either. Think of this, and let me know.
Truly yours, John Allison.”
If any doubts had before existed in respect of the partnership, or as to whether or not Perry and Hathaway had agreed to take the Boyal land of Allison into the partnership assets, they must be dissipated by these letters. If such a contract had in fact existed, it seems incredible that these letters should have been written. It is true that Allison testifies that he was induced to write them by Perry, with a view of hastening action on the part of Hathaway; but in this he is flatly contradicted by Perry, and would seem to lack corroboration from any other source. We are of opinion that the trial court was justified in its finding, and that no error has intervened in the affirmance thereof by the Appellate Court.
It is also assigned for error that the court erred in excluding the second deposition of Allison, taken after the filing of the master’s report. This deposition was not competent upon the hearing of exceptions to the master’s report. Cox v. Fierce, 120 Ill. 556" date_filed="1887-05-12" court="Ill." case_name="Cox v. Pierce">120 Ill. 556.
gome ten months after Perry’s examination before the master, appellant moved the court to require Perry to produce before the master certain letters he had received from appellant, based on affidavit that the same had been written by Allison and mailed to Perry, that each of said letters contained material and relevant matter, etc., and that Allison had no copies thereof, which motion was denied. This ruling is assigned for error. If such letters were admissible in evidence, Perry should have been given notice to produce them, and upon his refusal so to do, secondary evidence of their contents would have been admissible.
The master, in allowing Allison seven per cent interest on the sums paid out by him, did not err. In this he was justified by the proofs and the averments of the bill and answer. The allowance of the personal expenses of Perry and Hathaway in looking after the firm business was. fully justified by the evidence.
It is also urged that the decree does not provide for the collection of notes due the firm for rents, one for $500, due October 1, 1885, and one for a like sum due January 1, 1886. The rent collected was reported up to December 6, 1886, only, and these notes' were not then collected. The decree approves the report of the master, provides for the collection of these notes, and the rents subsequently accruing, for the benefit of the firm, and requires the master to make report thereof. In this there was no error.
The law does not require that the agreement of co-partnership shall be in writing, to enable the firm to purchase lands. Where a partnership is constituted under a parol agreement, it may be shown that its property consists of land, and it may own, possess and enjoy the same. By consent of all the parties here, the title to the Booth land was conveyed to Perry and Hathaway, and was in fact held in trust for the firm, and the Statute of Frauds can not be invoked by Allison to defeat a recovery on the notes given by him to his partners for his share of the purchase price of the land. Wallace v. Carpenter, 85 Ill. 590" date_filed="1877-09-15" court="Ill." case_name="Wallace v. Carpenter">85 Ill. 590; York v. Clunans, 41 Iowa, 95" date_filed="1875-06-21" court="Iowa" case_name="York v. Clemens">41 Iowa, 95.
We find no substantial error, and the judgment of the Appellate Court is affirmed.
Judgment affirmed.