27 Ill. App. 121 | Ill. App. Ct. | 1888

MoAlltsteb, J.

The position is broadly taken by counsel for plaintiff in error, that there was no legally sufficient consideration to support either the promissory note or assignment, as security therefor, of the policy of life insurance and benefit certificate in question, either as respected Neal K. Martin in his lifetime or as respects the plaintiff in error, his widow, and that, at all events, the court erred in admitting parol evidence tending to 'prove such consideration. If the instrument creating said note and assignment had recited a particular consideration, and that had been insufficient, then it would have been incompetent to prove another and different considera tion by parol. Schemerhorn v. Vanderheyden, 1 Johns. 139; Arms v. Ashley, 4 Pick. 73. But no such particular consideration was expressed, and by the well settled rule of law, parol evidence was admissible to prove a consideration either directly or circumstantially. Tingley v. Cutter, 7 Conn. 291; Cummings v. Bennett, 26 Maine, 397; Patchin v. Swift, 21 Vt. 292; Thompson v. Blanchard, 3 N. Y. 335; Primm v. Legg, 67 Ill. 500; Wolf v. Fletmeyer, 83 Ill. 418; Huebsch v. Scheel, 81 Ill. 281; Grier v. Puterbangh, 108 Ill. 602; Kidder v. Vandersloot, 114 Ill. 133.

The parol evidence being competent, the next question is, did it show a legally sufficient consideration for said promissory note and assignment as respects both parties making the same? Upon the facts shown by the record and a preponderance of all the evidence, we think it did.

The note was given to Stubbings for and on account of a sum found due and a balance struck upon an accounting, free from fraud or mistake, between the latter and said Heal 3L Martin, as respected all their partnership affairs, down to January 1, 1886. It was not an accounting that was to be preliminary to a final settlement, but was, in fact, and so regarded by the parties, a final settlement down to that period of time. As between said Martin and Stubbings, that indebtedness from Martin constituted, as some authorities hold, a sufficient legal consideration for the note. Pars, on Part. p. 278; 2 Bindley on Part. 1027; Van Ness v. Forrest, 8 Cranch, 30; Sturges v. Swift, 32 Miss. 237. At all events it constituted a good equitable consideration, and this was a suit in equity. But there was an additional consideration. By the first articles of co-partnership Stubbings had the legal right, upon written notice to Martin, to sever their partnership relations, had decided to do so, and given the notice accordingly. But at the request of said Heal K. Martin, in which his wife united, and their proposition to give said promissory note and make said assignment as security therefor, if Stubbings would not sever said partnership relations, but continue the same, Stubbings consented to waive said right and to enter into new articles of co-partnership, which was done as set out in the statement of the case April 16, 1886, and the said note and assignment executed at the same time. The waiver of any legal right, at the request of another, has always been deemed a sufficient consideration for a promise. Miller v. Hawker, 66 Ill. 185.

Aside from that, it appears upon the face of said new articles of ^partnership, that pecuniary benefits would flow therefrom and the business to be carried on thereunder, from Stubbings to Martin, while the former subjected himself to the burden of furnishing the plant, all tools, materials and cash capital necessary to carry it on. Martin was to contribute nothing but his personal services, so far as his poor health would permit, was authorized to draw out one hundred and fifty dollars per month for his expenses, and entitled to one half the net profits.

There being a valuable consideration for the equitable assignment of the policy of life insurance and benefit certificate, in which act Martin and his wife united and as to which there is no pretense of fraud or unfairness, we feel disinclined to enter into a discussion of the objections taken by counsel for plaintiff in error that such assignment was against public policy and impliedly prohibited by the statute under which the associations respectively were created, from which said policy and certificate emanated, because we consider that the decisions of our Supreme Court cover the entire ground against the plaintiff’s contention. Pomeroy v. Manhattan Life Ins. Co., 40 Ill. 398; Norwood v. Guerdon, 60 Ill. 253; Highland v. Highland, 109 Ill. 366; Johnson v. Van Epps, 110 Ill. 551; Benefit Association v. Blue, 120 Ill. 121. The decree below should be affirmed.

Note — The case of Cornelia Martin, implead d with the Supreme Council of the Royal League v. Wilson H. Stubbing, being the same as the above case, is decided in the same way.

Decree affirmed.

Garnett, J., took no part in the decision of this case.