Gen. No. 5,013 | Ill. App. Ct. | Aug 10, 1908
delivered the opinion of the court.
This cause should under the chancery practice in this state have been referred to the master to state the account, but by agreement of both parties it was tried by the court without such a statement. No error is assigned upon the fact that the court undertook the trouble of stating the account nor is it questioned but what the manner of stating the account adopted by the court as set forth in the decree is the correct method, if the premises found by the court are correct. Any error in procedure in not having a statement of the account by the master is waived.
The only questions assigned for error are that the court should not have found that the principal of the notes was due and unpaid October 1, 1894; that the court should have found that the cause of action was barred by the Statute of Limitations; that the court should have allowed a credit for board at the rate of $20 per month instead of $12.50 and that the court erred in allowing interest at eight per cent, per annum after October 1,1894.
The notes provided that they should bear interest at eight per cent, per annum after maturity. If the notes were not fully paid the court could not do otherwise than allow interest at the rate the parties had agreed upon.
After Michael Gallagher’s death, William Walsh, William Lamb, a nephew of William Walsh and Frank J. Hennessey, in a bank in Chebanse, figured on the amount due from Walsh on these notes. Walsh gave Lamb and Hennessey the data to figure upon. At that time Walsh said the notes bore six per cent, interest and the board was calculated at $12.50. There was also proof that Gallagher paid $2.50 per week for board and sometimes $10 per month. While proof was made that it was worth $18 or $20 per month, the court was justified in fixing $12.50 as the proper credit to be allowed and there was no error in the court’s action.
It is contended that the Statute of Limitations is a bar to the suit. The answer of William Walsh states that no money was ever asked for or paid on the notes, but that they were boarded out. William Walsh, who was one of the executors of Charles Gallagher, deceased, and was also a son of the maker of the notes, and one of the defendants, testified that while he was such executor and living with his father in 1894, he was authorized to indorse the amount of the board bill of Charles Gallagher for the previous years on the note and did so indorse them, and that there were other indorsements on them at that time but that he could not tell the amounts or dates. He also stated that Charles Gallagher was up to the time of his death boarding at William Walsh’s on these notes. If that be true, then William Walsh made a payment by board furnished Gallagher on these notes; that fact would prevent the running of the statute up to the date of the last board furnished. William Walsh, Jr., showed the notes to his father, who was interested as a legatee in Charles Gallagher’s estate, when he was paying a sister of Charles Gallagher a bequest made in the will. William Walsh was cognizant of the indorsement, and failing to repudiate it, the effect of the payment and indorsement was to toll the statute. Willett v. Maxwell, 169 Ill. 540" date_filed="1897-11-01" court="Ill." case_name="Willett v. Maxwell">169 Ill. 540. In 1900, after the death of Michael Gallagher, in conversation with various parties, William Walsh acknowledged the notes to be unpaid. He even prepared and filed a verified claim of $900 for board against the estate of Michael Gallagher. This through his counsel he withdrew from the files of the Probate Court without leaving a copy. Notice was given him to produce this that it might be used in evidence in the case, but it was not produced. This is a very strong-circumstance against the appellants. An account of that kind would keep alive the notes unless the statute had already run against them, and ten years had not intervened since credit had been given to Charles Gallagher on the notes by. furnishing him board to be applied in payment on them. The allegations of the answer and cross-bill show that it was the agreement between the parties that the board should be applied as a payment on the notes, and that there was almost every year some hoard furnished by William Walsh to the holder of the notes, and that indorsements for board were made, although the amount of the indorsements was not proven. The court was justified on the proven admissions of William Walsh and the agreed application of the board of the Gallaghers on the notes, in finding that the debt was a subsisting obligation and in decreeing a foreclosure. Where the evidence is conflicting this court will not disturb the decree unless it is clearly and manifestly against the weight of the evidence. Day v. Wright, 233 Ill. 218" date_filed="1908-02-20" court="Ill." case_name="Day v. Wright">233 Ill. 218, and cases cited.
Some cross-errors have been assigned by the appellee but we do not find any merit in them. The decree is affirmed.
Affirmed.