106 Ill. 461 | Ill. | 1883
delivered the opinion of the Court:
Since the judgments sought to be set off are not between the same parties, it is clear there could be no set-off at law, and it devolves upon appellant, therefore, to show some equitable ground for being protected against the judgment of William C. Hickox. (Raleigh et al. v. Raleigh, 35 Ill. 512.) It is not enough, here, that appellant may have shown its rights were equal to those of I. B. Hickox; unless it has shown they were superior to any equitable claim which can be urged in his favor, appellant can not succeed. (Holbrook v. Receivers, 6 Paige, 231; Hannon v. Williams, (7 Stew.) 34 N. J. Eq. 255.) The allegation of the bill that I. B. Hickox had notice of the existence of appellant’s judgment when William C. Hickox assigned his interest in the contract to him, is not only unsustained by the proof, but the reverse was affirmatively proven. William C. Hickox expressly testified that I. B. Hickox had no such notice, and there was no other evidence- upon the question. The question of whether I. B. Hickox was a purchaser for value, in the sense entitling him to protection as against any equities in favor of appellant, is also put at rest by the evidence of William C. Hickox, no countervailing evidence having been given. He testified that the assignment was made pursuant to a previous agreement, whereby I. B. Hickox agreed to pay him (William C.) $1100 therefor, and-that of this amount $650 was paid before the assignment was made, and the balance was paid afterwards.
But was I. B. Hickox put upon notice of the equities of appellant by virtue of the terms of the contract assigned' to him ? At most that could but require him to know the terms of - that contract, and the rights of the parties thereunder. It could not require him to know the terms of a different contract with other parties, and the rights of the respective parties thereunder. As was observed in Greene v. Darling, 5 Mason, 214: “Where a chose in action is assigned, it may be admitted that the assignee takes it subject to all the equities existing between the original parties as to that very chose in action so assigned. But that is very different from admitting that he takes it subject to all equities subsisting between the parties as to other debts and transactions.”
It is quite true that the judgment obtained by appellant in the Supreme Court of New York was under a contract evidenced by a writing on the same piece of paper as that on which the contract assigned by William C. to I. B. Hickox, and under which the judgment obtained in the Cook circuit court was written; but it is not true that both judgments are under the same contract. In construing instruments of • this character the question is, what interest was intended to be vested in the respective parties ? And hence, “where the language of the covenant is capable of being so construed, it shall be taken to be joint or several, according to the interest of the covenantees.” (Chitty on Contracts, (11th Am. ed.) 1343.) “The result of the cases, ” observed Lord Denman, Ch. J., in Foley v. Addenbrook, 4 Ad. & El. (N. S.) 197, (45 Eng. C. L. 197,) “appears to be, that where the legal interest and cause of action of the covenantees are several, they should sue separately, though the covenant be in joint terms.” See note v, Chitty on Contracts, ubi supra. See, also, to like effect, 1 William’s Saunders, 155; 1 Chitty’s Pleading, *11, 10.
The contract under which the judgment in favor of appellant in the Supreme Court of New York was obtained, was with William C. Hickox and Joel M. Hickox, and it related entirely “to the closing of the business now existing between the Howe Machine Company, * * * and W. C. Hickox and J. M. Hickox. ” But the contract assigned by William C. to I. B. Hickox, and under which the judgment in the Cook circuit court was obtained, had nothing to do with the “closing of the business between the Howe Machine Company and W. C. and J. M. Hickox, ” but related exclusively to the employment of W. C. Hickox by the Howe Machine Company to sell machines within a designated territory, and during a stipulated time. There is not the slightest pretense for contending that J. M. Hickox was in anywise responsible for the conduct of W. C. Hickox in this regard, or entitled to participate in the profits he might thereby make. Two separate and wholly distinct subject matters were agreed to,— one, the closing up of an existing business, and the other, the carrying oil .of a new business. Had the agreements been written on separate papers, and separately signed, their disconnection would have been obvious to every intelligent apprehension. And yet the fact they are written on one piece of paper can make no difference.- If, in the minds of the parties, they are separate and distinct in the one case,— and this is apparent from the language employed,—they must be so in the other. The only real difficulty is in arriv,ing at the intention of the parties.
We see no cause to disturb the decree below. The case is not brought within any of the exceptions laid down in Hughes v. Trahern, Admx. 64 Ill. 48. See, also, Ullman v. Kline et al. 87 Ill. 268.
Decree affirmed.