| Ill. App. Ct. | Oct 23, 1900
delivered the opinion of the court.
Appellant states that “ there are practically but two broad questions to be considered.” These are, first, whether the testimony offered on behalf of appellant to sustain his claim for damages was competent, and the alleged verbal agreement void under the statute of frauds; and second, whether the notes and trust deed of January 1, 1895, now sought to be foreclosed, were executed in settlement of the claims of appellant.
There was evidence tending to show, as found by the master, that at the time the original trust deed was produced by appellee for appellant’s execution, the latter called attention to the omission therefrom of a clause providing that the purchaser should be allowed to subdivide the purchased bract and submit such subdivision to the vendor, and that upon payment on any lot of its ratable proportion of the total debt a release should be executed; and evidence that appellant was then told by the vice-president of the appellee company that “there was friction in the board of directors of appellee regarding the release clause,” and that it had better be omitted, but that as soon as a subdivision was made the appellee would consent to it, and the release would be executed as before agreed upon; and that relying upon such statement the original trust deed was executed. About a year thereafter such an agreement was embodied in a separate and distinct instrument.
It is practically conceded by appellant that such' a verbal' agreement relating to the sale of an interest in or concerning lands is void under the Statute of Frauds, unless the vendor is guilty of fraud, as in Bozza v, Rowe, 30 Ill. 200. But it is evident from the statement of facts as made by appellant himself, that no fraud ivas practiced in the present case to obtain the execution of the original trust deed without the insertion of the release clause. Appellant took his chances, and executed the trust deed, knowing that there ivas “ friction ” in the appellee’s board of directors regarding the release clause in question. He relied wholly on the statement of appellee’s vice-president that appellee would consent when the subdivision was made. This was evidently a mere expression of opinion by the officer in view of what had transpired. Appellant knew that so much “ friction ” then existed in the board of directors of appellee as to prevent the insertion of the release clause in the trust deed as he had requested and he took his chances as to its abating when the plat and subdivision were made. There is certainly in this no evidence of fraud on the part of appellee or its officer. The language used in Lane v. Allen, 162 Ill. 426" date_filed="1896-05-12" court="Ill." case_name="Lane v. Allen">162 Ill. 426, on page 429, is applicable, where it is said, referring to a trust deed, “ The contract could not be varied by evidence of conversation during the negotiations.” See also Smith v. Price, 39 Ill. 30. The presumption must undoubtedly be, that the entire actual agreement of the parties with reference to the obligation incurred in the trust deed, was reduced in writing, and oral testimony as to conversations prior to the execution of the instrument must be rejected. U. N. Bk. of Chicago v. L., N. A. & C. Ry. Co., 145 Ill. 221.
But if appellant was entitled or thought he was entitled to damages for the failure to insert such so-called release clause in the original trust deed of 1890, he must be deemed to have waived such claim, when he executed the notes and trust deed of January, 1895. ' He states that in conversation Avith the president of the appellee company about that time, he referred to the damage he claimed to have suffered because of the failure of the appellee to insert the release clause in the original trust deed, and the subsequent delay in approving the subdivision. He states that said president said it Avas unnecessary to discuss those questions, but that he thought under all the circumstances appellant ought to have an extension of the indebtedness. The result was the execution of the notes and trust deed now sought to be foreclosed. If appellant had a valid claim for damages which he felt himself entitled to enforce, that was the obvious and natural time to assert it. Instead of so doing he speaks of the matter as a ground for asking time, but asserts no claim for any sum whatever as damages. It was not necessary that he should in words abandon a claim which he had, so far as appears, never asserted. If we assume the validity of such claim his failure to assert it at that time and his execution of the new notes and trust deed should equitably estop him from now contesting his liability thereunder. He received the benefit of the extension in part apparently because he claimed to have been unfairly treated in the original transaction. Under such circumstances he must be held to have waived any objection to the liability he then assumed.
It further appears that appellant was not the sole maker of the original notes. That obligation was joint. He now seeks to offset an alleged liability for damages to himself and another, against his individual and separate debt. This he can not be permitted to do. Dameier v. Bayor, 167 Ill. on page 547, and cases there cited. In Scammon v. Kimball, Assignee, 92 U. S. 367, it is said :
“ Courts of equity following the law will not allow a set-off of a joint debt against a separate debt, or a separate debt against a joint debt; nor will such courts allow a set-off of debts accruing in different parts except under very special circumstances, and where the proofs are clear and the equity strong.”
Objection is made to the finding of the decree in favor of defendant Emil Budert. The objection is that no evidence was offered as to the ownership of the notes and trust deed introduced by Budert, and no evidence that said notes were still unpaid. The possession of the notes and trust deed and their introduction in evidence by Budert, constitutesfade proof of ownership. Stiger v. Bent, 111 Ill. 328" date_filed="1884-09-27" court="Ill." case_name="Stiger v. Bent">111 Ill. 328. The same is true as to payment. The introduction of the uncanceled notes by the party claiming thereunder is prima facie evidence that they are existing liabilities.
We find no error in the decree of the Circuit Court and it is affirmed.