76 Ill. 115 | Ill. | 1875
delivered the opinion of the Court:
Two points are insisted upon by appellant for the reversal of this judgment: that the action is prematurely brought for the recovery of any thing more than $500, and that the loss incurred by Evans on account of the neglect of the agent in respect to the mortgage, should have been deducted from the amount to be paid to him under the contract.
All that Evans himself agreed to pay Hughey for making the sale was $500. He agreed further that whatever sum Hughey might get over $30 per acre, the latter should have, but not that Evans would pay to Hughey that excess. Hughey did make sale at $35 per acre, but instead of' taking and reserving to himself the excess of $5 per acre, as he might have done under the contract, he saw fit to mingle it in the notes which he took payable to Evans, making it a part of such notes. Whenever the notes are fully paid to Evans, or, may be, when they shall all have become due, and a reasonable time shall have elapsed for their collection, then Hughey will be entitled to recover this excess of $5 per acre as money had and received by Evans to Hughey’s úse. At the time this suit was commenced, the last note, payable January 1,1874, had not become due. Evans had not then received his $30 per acre nor had it become due to him ; and surely, before he had received the $30 per acre, or become entitled to receive it, he could not be called upon to refund to Hughey the excess above $30 per acre; That belonged to Hughey under the contract, with which Evans had no concern, and Hughey could not make Evans liable to pay it presently, on the making of the contract of sale, by putting it in the notes made payable to Evans. Evans had but a promise to pay him the money, from which he might fail to be able to realize the money in full. When he receives the money, that which belongs to Hughey, then he will be liable to the latter for it. The court below gave judgment for the whole amount of this excess of $5 per acre, in addition to the sum of $500 agreed to be paid by Evans under the contract. Herein, we are of opinion, the court erred, and that only $500 were recoverable at the time the suit was brought.
As to the point of the alleged loss by neglect of the agent in getting the mortgage recorded, the stipulation in the written contract sued on was, that the first payment of $3000 must be secured by mortgage on real estate worth at least $6000. Hughey testified that the Moultrie county land was worth $35 per acre, making its whole value $11,200. This considerably exceeds the amount of both the mortgage debts, and also the amount of the judgment liens on the land discharged by Evans. So that if Evans did. incur a loss to the amount of the money he paid in removal of the j udgment liens upon the land, it would not seem to have been in consequence of the first payment of $3000 having been insufficiently secured, but in consequence of the mortgage not having been placed upon record within a reasonable time; and the agent’s liability, if any, for such loss arises otherwise than upon the written contract sued on. It would grow out of the transaction of the business which Evans, when at Mattoon, left in the hands of Hughey on the former’s departure for his home in Missouri, of obtaining from the Bigneys a mortgage for the security of the $3000 note and another one for $2500. The cause of the supposed damage would have arisen in the course of the performance of that business, and would have been, not the taking of an insufficient mortgage security in breach of the written contract, but the not using proper diligence in having the mortgage recorded, being negligence in the performance of the business of taking the mortgage, which had been intrusted by Evans to, Hughey, and which the latter undertook to perform.
"We are of opinion that whatever recovery Evans may be entitled to on áccount of this alleged damage, must be sought in a distinct suit, and can in no way be set up in the present action, as it is something not growing out of the contract sued upon. To be the subject of recoupment, the defendant’s claim must arise out of the cause of action involved in the plaintiff's suit. Hubbard v. Rogers, 64 Ill. 434.
For the error before indicated, the judgment will be reversed and the cause remanded.
Judgment reversed.