| Ill. | Dec 15, 1857
Edey sued Smalley in assumpsit, declaring, in the first count, upon an instrument in writing, set out in hcec verba as follows:
“ I do agree to pay Richard A. Edey one hundred and forty-eight dollars and twenty-seven cents, provided I do not settle said amount with Richard Hoover, and Mr. Edey is compelled to pay the same to said Hoover. I will settle the same with Hoover in thirty days, if practicable, or as soon as said Edey has to pay Hoover the money. John B. Smalley.”
The declaration also contained the common counts, for certain land sold, and so forth. The defendant pleaded the general issue, with stipulation that all matters of defense might be given in evidence under that issue. The cause was tried by the court, and judgment rendered for the plaintiff.
On the trial, the plaintiff proved a receipt and release, executed by Richard Hoover to him, dated the 10th of May, 1850, acknowledging the payment of $148.78, in full of money paid by Hoover to the plaintiff, on a purchase of land, the contract for the sale of which had been rescinded, and the land sold by the plaintiff to the defendant; and proved that, at the time of the execution of the contract, in the first count set forth, by arrangement between Hoover, the plaintiff and defendant, the plaintiff conveyed the lands mentioned in the declaration to the defendant, and which had been previously contracted to be conveyed by the plaintiff to Hoover, who had paid the plaintiff on the same, of the purchase money, $148.27 ; that afterwards the plaintiff, at the instance of Richard Hoover, in payment of the money due from the plaintiff on the rescission of the sale of the land, executed to one John Hoover his promissory note, which had not been paid, and that John Hoover executed to the plaintiff a stipulation that the note was to be paid out of the proceeds of a judgment, if obtained, in a suit then pending.
The defendant proved, that, in 1851, the plaintiff sued him in the Circuit Court, in assumpsit, counting, in the first count of his declaration, upon the contract sued on in this case, and in the second count for lands sold; that the defendant pleaded the general issue, and the cause being tried by the court, the court found the issue upon the first count for the defendant, and the issue upon the second count for the plaintiff, and rendered judgment accordingly; that the defendant appealed to. this court, where the judgment was reversed and the cause remanded, and that the plaintiff afterwards, in the Circuit Court, dismissed his suit.
The contract sued on in this case, was before this court in the case of Smalley v. Edey, 15 Ill. R. 324; and this court held that a cause of action would accrue thereon to the plaintiff, upon payment by him to Hoover of the money therein mentioned. Such payment was alleged in this case and proved. The note executed by the plaintiff, payable to John Hoover, is presumed to have been negotiable; and such note executed by the debtor, in settlement of his debt, to a third person, at the instance of the creditor, or to the creditor himself, is, prima facie, a payment of the original debt. Ralston v. Wood, 15 Ill. R. 159 ; 2 Greenleaf’s Ev., secs. 519, 520.
The stipulation, in the separate paper, in regard to the judgment to be obtained, is too uncertain to form a condition to the note. It does not appear what suit was in the minds of the parties, or that any judgment they may have had in mind was ever obtained.
The former suit on the same instrument, and the judgment for the defendant on the first count, counting upon that instrument, even if that judgment remains in full force, do not, under the proof made, amount to a bar of this action.
It does not appear that that count alleged facts amounting to a cause of action, upon which judgment might have been lawfully rendered for the plaintiff on proof of those allegations; and, if it did not, the judgment thereon for the defendant is no bar to another action upon the same instrument. Where a count of a declaration is defective in substance, so that, upon verdict for the plaintiff thereon, the judgment would be arrested, the court may disregard it, or judgment thereon may be rendered for the defendant. Statutes 1858, 261. A judgment rendered for defect of pleading is not a judgment upon the merits, and, therefore, is no bar to another action upon the same contract; and it was for the defendant to show that the cause of action upon which the former judgment was rendered, was the same as that of the present suit. It does not follow that, because the former suit was upon the same paper writing, the cause of action was the same. The right of action may not then have accrued; and, indeed, the evidence fails to show what the cause of action alleged was, except that the same paper was declared on.
If the facts alleged in that count as the plaintiff’s cause of action, being admitted or proved, would not entitle the plaintiff to judgment, the judgment thereon for the defendant would not bar or estop the plaintiff from again suing upon the same contract declared on in that count. 1 Chitty’s PL 198 ; 3 Green-leaf’s Ev., secs. 35, 36 ; Phillip’s Ev., part 2, chap. 2, sec. 2 ; Benton v. Duffy, Cam. & Norw. R. 98 ; Stevens v. Dunbar, 1 Blackf. R. 66 ; Lane v. Harrison, 6 Munford R. 563.
Judgment affirmed.