118 Ill. App. 240 | Ill. App. Ct. | 1905
delivered the opinion of the court.
It is urged that the Circuit Court erred in admitting in evidence the contract sued on, because the consideration set forth in the second special count of the amended declaration, the only count under which the instrument was admissible, differed materially from that expressed in the instrument.
The last clause of the instrument says “this agreement is made and accepted on both sides in full settlement of all past and present differences between them of every name and nature whatsoever.” This is a general statement of the consideration for the agreement, and it is substantially the consideration averred in the second special count. While the instrument recites the bill filed by appellee against appellant and that it should be dismissed for want of equity, and that appellee was not and never had been the wife of appellant and that she agreed to make no such claims, etc., this must be regarded only as a more specific statement of the consideration afterwards expressed in the same instrument and substantially averred in the special count. We do not think, therefore, that the court erred in admitting the agreement in evidence.
It is also urged that a want of consideration appears affirmatively on the face of the instrument sued on. We cannot assent to this contention of appellant. The instrument shows on its face that there were serious differences between the parties, and that those differences were compromised and settled in the manner expressed in the instrument. The instrument shows mutual covenants to be performed on the part of both parties to it, and that the covenants of one party were in consideration of the covenants of the other party. Thus the instrument on its facie expresses a good legal consideration.
Error is assigned upon the rulings of the Circuit Court in sustaining the demurrer to appellant’s special plea filed June 7, 1902, and in excluding the evidence offered by appellant of the record and decree of the second maintenance suit. These rulings of the court relate to the legal effect of the institution and prosecution to judgment of the second separate maintenance suit. The learned trial judge held that the proceedings in question did not constitute an estoppel as against the plaintiff, appellee in this case. Counsel for appellant very correctly say, in argument, that under the authorities cited by them this evidence, if otherwise admissible, was admissible under the general issue, and that if such is the case, the error consisted in the rejection of the evidence, rather than in sustaining the demurrer to the plea. If the effect of these proceedings tended to show the assent of appellee to the abandonment and repudiation of the contract by appellant, the evidence was admissible under the general issue, and it was error to exclude it.
It is a conceded fact in this record that after the agreement sued on in this case had been signed by the parties, appellant made at the most only nine payments under it and then refused to make any more and abandoned the contract. There were then three courses open to appellee: (1) she could stand by her contract, refusing assent to appellant’s attempt to rescind it, and sue appellant for the installments provided in the contract as they fell due; (2) she could stand by her contract, refusing assent to appellant’s attempt to abandon and rescind it, and sue appellant for a total breach of the contract and for general damages; or (3) she could assent to the abandonment of the contract and thereby effect its rescission, thus placing herself in her original position as fully as if the contract had never been made. Graves v. White, 87 N. Y. 463; Bannister v. Read, 6 Ill. 92.
From the records of the second suit for separate maintenance, which were excluded by the court, it appears that appellee waited for about a year and a half after appellant had abandoned the contract, and then filed her second separate maintenance bill, in which, among other things, she characterizes the agreement now sued . on as false and fraudulent, and as having been obtained from her by appellant’s fraud and misrepresentations. Appellee prays that the decree dismissing the bill entered in her first suit against appellant be reversed and declared of no effect, and for suit money and temporary alimony and permanent alimony, and secured a decree of the Circuit Court pronouncing the contract void.
In filing and prosecuting this second suit it seems clear that appellee did not stand by and perform her covenants contained in the agreement; that on the contrary she did everything which she had covenanted not to do in the agreement, and procured a decree nullifying the agreement. This clearly signified, appellant having repudiated the contract, that she accepted and joined in the abandonment of the contract.. Bo other inference can be drawn from her action. If this inference can be drawn from the facts disclosed in the record of that suit and its prosecution to a conclusion in the Supreme Court, the law would thereupon say that the contract was dissolved and at an end; and that the parties were restored to their original position before the contract was made, and neither party could sue for a breach of it. Huey v. Grinnell, 50 Ill. 179; Harrington v. Hubbard, 1 Scan. 569; Williams v. Forbes, 47 Ill. 148; Rowe v. Rowe, 5 Ill. App. 331. It follows then that the evidence of the files and records of the second separate maintenance suit were erroneously rejected.
During the trial the following occurred:
Mr. Doyle (appellee’s counsel): “I want it admitted here or else testified that Mr. McKenna at that time in 1894 or 1896 was worth $250,000.”
Mr. Craig: “ I object to any statement.”
The Court: “ I think it is immaterial what he is worth.”
Mr. Craig: “ I take exceptions to the statement of what he was worth.”
Mr. Doyle: I have the right to show this man, when he refused to live up to this contract, he was worth a quarter of a million dollars. I have the right to show that.”
Mr. Craig: “ I object to the statement of counsel and ask that it be stricken out.”
Mr. Andrews: “ I intend to make proof on that point.”
The Court: “ That is a question I am not prepared to rule upon at once. The motion to strike out the statement of counsel and objection to statement of counsel with reference to the financial condition of the defendant, the ruling is reserved.”
Later in the trial the court sustained an objection to the evidence and struck; out the remark of counsel.
It is contended by counsel for appellant that the action of the court, in striking out the remark of counsel for appellee did not remedy the effect of the remarks of counsel upon the minds of the jurors. With this contention we are inclined to agree.
For the errors indicated the judgment must be reversed and the cause remanded.
Reversed and remanded.