32 Ill. 53 | Ill. | 1863
delivered the opinion of the Court:
This was an action of assumpsit brought in the Superior Court of Chicago, upon a promissory note, and tried by the court without a jury on the general issue, and fraud and want of consideration. The issues were found for the plaintiff, and judgment rendered for the amount of the note and interest, from which this appeal is taken. There is no question of law raised on the record, the only question presented being on the facts, and they having been thoroughly examined and considered by the court below, on a question of fraud and want of consideration, we would riot, without the strongest reasons, interfere with the finding of that court.
From a close examination of the evidence in the record we can discover no fraud perpetrated by the appellee against the appellant, however much he may have committed as against Teetzel, the joint owner with him of the boat. It will be observed that the appellee had undertaken to bargain and sell Teetzel’s interest in this boat to the appellant for the sum of four thousand five hundred dollars, and had closed it, except making out the papers and receiving the cash payment. Six days before, Teetzel wrote the paper signed by him and called exhibit A. That bears date October 29. The sale to appellant by appellee was made on the 23d, as appears by exhibit B, and by which appellant was bound in law. Here was a complete bargain made without any misrepresentations at that time. It was not until six days thereafter that Teetzel made a general offer, not to appellant alone, but to all the public, that he would take a less sum. The bargain was closed between appellant and appellee long before, and appellee was authorized by Teetzel to sell and retain all he could get for the vessel over and above three thousand seven hundred and fifty dollars. It appears, from Teetzel’s testimony, that appellant knew appellee was making seven hundred and fifty dollars, the amount of the note sued on, when the business was closed up at Slater’s office. Appellee signed a bond of indemnity with appellant, and joined appellant in chattel mortgage on the vessel, all which he was under no obligation to do. And at the very time of this closing of the bargain, the appellant inquired of appellee, if it would make any difference, as 'the parties were in a hurry, whether he made “that note” then or at some other time, to which appellee replied it would make no difference. It is a most violent presumption that “that note ” is the one sued on, as it bears date two days after the consummation of the sale in Slater’s office. Again, it is clearly shown, by Slater’s testimony, that the appellant knew appellee was making the amount of this note hi the sale. Again, when called upon for payment, some weeks after it was due, in July, 1861, he made no objection to the justice of the claim, said it was all right, but being pressed by a large payment he had to make on the vessel, he could not then pay it, but would pay it when he was in funds.
It is evident appellant has received all he contracted for, and at the price, including this note, he voluntarily agreed to give, and no ground appears on which to base either of the special pleas. Ño fraud is shown in procuring the note, and the consideration for it is found in the vessel, and the risk appellee ran in joining in an indemnity bond, and giving a chattel mortgage on his interest in the vessel to secure Teetzel. It is very clear, after paying this note, appellant will have paid no more for the vessel than he knowingly and fairly contracted to pay.
The judgment must be affirmed.
Judgment affirmed.
