| Ill. App. Ct. | Feb 10, 1891
On the first day of June, 1882, Charles H. Eobison, husband of appellant, who is now a widow, he having died while this suit has been pending, Charles Y. Eobison, their son, and the appellees, William F. Eoos and Horace W. Henshaw, formed a co-partnership; tlxe business being the manufacture of butterine in Chicago.
On the third day of December, 1883, Charles Y. Robison died intestate, leaving surviving him his widow, Marguerite (since re-married, and now Mrs. Breyfogle, which, perhaps, accounts for all the trouble), and two boys, their sons.
Up to the time of the death of Charles Y. Robison the business had not prospered, and if it had been closed out there would have been, probably, nothing coming to his estate from the assets of the firm. The business continued without change until the first day of May, 1884, when the survivors of the firm and William E. Roos (not a party to, or interested in this litigation), formed a new co-partnership for the continuance or the business. The new firm continued until the 24th day of June, 1885, when it was dissolved by the other partners selling their interests to Charles H. Robison, he agreeing to pay the debts of the firm. At the same time he, and the widow of his son, executed and delivered to those other partners, this instrument:
“We, the undersigned, hereby, in consideration of the sum of §6,631, paid us this day by William F. Roos, William E. Roos and Horace W. Henshaw, which amount is their proportion of the indebtedness of the firm of 'Charles H. Robison & Co., to Charles Y. Robison, being six-tenths of the entire amount so due, hereby release and discharge the said William F. Roos, William E. Roos and Horace W. Henshaw, from all claims and demands of said Charles Y. Robison, now deceased, against said firm of Charles H. Robison & Co., or by his estate.
“ Witness our band and seals, this 24th day of June, A. D. 1885.
“C. H. Robisox, [seal.]
“Maggie Robisox. [seal.]”
Charles H. Robison then gave the widow his note for the sum mentioned in the above release. Ho specific sum of money was paid to Charles H. Robison by the outgoing partners to hold in trust for the estate or representatives of his son, but the value of the assets of the firm retained by him was a full equivalent for his own interest in the firm and for all the debts of the firm, including the sum assumed in the release to be due to Charles Y. Robison.
There is, however, a good deal of testimony tending to show, and supporting the finding of the court below, that, as between the partners at the time of the dissolution, a specific part of the money in bank, $6,500, was by them all considered as appropriated and received by Charles H. Robison for the interest of the estate of Charles Y. Robison in the assets.
There is also testimony that Charles H. Robison, the appellant, and the widow of Charles Y. Robison, had conversations recognizing as a fact that Charles H. Robison had the money in his hands for the interest of his son in the assets of the first firm, or the indebtedness of the last firm, as recited in the release, and that Charles H. Robison was about to invest the money in some cottages he was going to build in Maywood. In fact he did build cottages on the land cpnveyed to him by deed dated June 30, 1885. Charles H. Robison paid, from time to time, to the widow of his son, money, which, if she was claiming or could claim anything in her own right, has reduced the sum in controversy to $4,300. He became embarrassed, if not insolvent.
On the 20th day of October, 1886, letters of administration on the estate of Charles Y. Robison were issued to Benjamin. F. Cummings, by the Probate Court of Cook County, and he sued out of that court a citation to the surviving partners of the first firm, to account for what was due to the estate. This was not served upon Charles H. Robison, but was served upon the appellees, and by a decree of the Probate Court of April 13, 1887, the administrator recovered against them the $4,300, which they paid, and the note made by Charles H. Robison to the widow of his son was delivered to them. In the meantime, the title to the land and cottages had become vested in the appellant.
The bill is filed upon the theory that upon the dissolution of the last firm, money which all the partners owed to the estate of Charles Y. Robison, was, by the terms of the dissolution, from the assets of the firm, intrusted to Charles H. Bobison for the benefit of that estate; that he invested by his own act and intention in the cottages, money which he segregated from his general funds, and specifically devoted to that investment, as money so intrusted to him; that therefore the persons beneficially interested in that estate became entitled to follow that money, as their own,into the cottages; that notwithstanding the dissolution and the release above copied, the appellees remained responsible to the persons beneficially interested, but as between Charles H. Bobison and themselves, he was a principal and they only sureties; and that, being compelled to pay, they should be subrogated to the right to follow the money into the cottages, as the appellant took the title with notice. The decree gives them that relief, directing a sale of the property in default of re-payment of what they have paid, with interest and costs. There is sufficient evidence of the facts to make that theory applicable and support the decree; to recite it would take a large space and be of no benefit.
The appellant urges that at the time of the death of Charles Y. Bobison the affairs of the first firm were in such a state that he had no assets in it, and therefore his estate is not entitled to share in subsequent profits, citing 2 Lind. Part. 532.
In special cases, such as are there cited, it may be conceded that the general rule does not apply, but in this case the funds in controversy came to Charles H. Bobison wholly from the interests of. his co-partners in the assets of the last firm, and if they chose to allow the estate of Charles Y. Bobison to share in their interests in such assets, neither Charles H. Bobison nor any one claiming under him with notice, could repudiate the terms on which he received the funds, and claim that they were his own.
There is in the record no ground for any pretense that the new firm could have been indebted to the estate of Charles Y. Bobison upon any other consideration than the right of that estate to share in the profits of the business carried on after his death, without any accounting or adjustment of the affairs of the firm.
The right was recognized by all parties. The dissolution of the last firm and the release accepted by the outgoing partners were on that basis. It may be that nothing had been done that estopped the appellees in the Probate Court to deny their liability to the administrator of Charles T. Eobison, when there called to account in pursuance of Secs. 87, 88 and 89, of Chap. 3, R. S. of 1872, but at least the manner and terms of that dissolution furnished such strong evidence of the right of the administrator, against all the surviving partners of the first firm, as would have been exceedingly difficult, if not impossible, for them to overcome. Charles H. Eobison having, in the dissolution, agreed to pay the debts of the firm, the appellees, as between him and them, were sureties only. Brandt on Guar., See. 23. Having paid a debt which he ought to have paid, they have the right of subrogation to the remedy of the creditor. Rice v. Rice, 108 Ill. 199" date_filed="1883-11-20" court="Ill." case_name="Rice v. Rice">108 Ill. 199.
The debatable questions in this case are mainly of fact, and the evidence sustains the decree. It is therefore affirmed.
Decree affirmed.