119 Ill. App. 443 | Ill. App. Ct. | 1905
delivered the opinion of the court.
The facts in this cause, as shown in the record, irresistibly suggest to us that the plaintiffs parted with their money without sufficiently considering possible contingencies and results in the affair in which they were involved, and that the defendant’s testate used the money as it was expected and intended that he should, and without the liability to account for it, save under circumstances which were expected to happen, but which never came about. When H. O. Stone & Co. gave, as the weight of the evidence shows they did, the cheque for $1,400.13, made to the order of the master in chancery, to Mr. Conover for Dr. Mulvaine, and received in exchange the receipt which is in evidence, they believed undoubtedly that the property would be redeemed and that they would have a double security for the money they were advancing: first, the amount which Mrs. Sobra or her creditors or assignees would pay for such redemption; and secondly, the amount of the Sobra insurance policy deposited in the First ¡National Bank.
They knew, of course, that it would be necessary for Dr. Mulvaine, Under this arrangement, to bid in the property for the aggregate amount of the liens against it; for if he did not, he could not, in case of redemption, make himself whole, and at the same time repay to H. O. Stone & Co. the amount then advanced by them. But they overlooked, or did not recognize, the truth of the correlated proposition, that if the property were bid in for the aggregated amount of the liens, the mechanics’ liens would be, in the eye of the law, paid by Mrs. Sobra’s property, and the money - held “in escrow” by the First ¡National Bank would have to be released to her.
It appears, indeed, by the plaintiffs’ own statements (although the evidence concerning the litigation between the appellants and Mrs. Sobra as offered below in the case at har was rejected, and we think rightly so), that it was not until a judgment of a chancellor in the Superior Court to that effect was affirmed by this court, that the appellants here yielded assent to this legal conclusion.
Their claim on the fund springing from the Sohra insurance policy being gone, however, and there being no redemption money from which they can recoup themselves, as the property was not redeemed, they are in the position of having, in reaching for the doubtful, dropped the certain unless they can recover in this action from Dr. Mulvaine’s estate the money which they paid over to him. In any case, the practical and unfortunate result would seem to be that Mrs. Sobra, who should have paid these liens; is not obliged to do so, and that the loss must fall on one of two parties, who should, in justice, have been equally protected against it.
Certainly Dr. Mulvaine did not anticipate that his security would be burdened, if he were obliged to take it in satisfaction of his debt, with the amount of these liens. It-was precisely that which he endeavored to guard against by insisting on the original letter of guaranty from the appellants. F"or can it be supposed that H. O. Stone & Co. anticipated an ultimate loss to them in negotiating this loan, or gave the guaranty in question without feeling assured that Mrs. Sobra would pay for the repairs in question from her own resources.
The Circuit Court has decided, however, that as between the appellants and the appellee, the loss must fall on the appellants, and that with the appellants’ unfortunate experience with Mrs. Sobra, appellee has nothing to do. It is our opinion that in this the Circuit Court is right.
We think that although the cheque of II. 0. Stone & Co. of November 8, 1895, for $1,400.13, was made to the order of the master, the evidence fairly establishes that it was so made only for convenience, and because the hands of the master were its ultimate, destination, and that it was given to Dr. Mulvaine for his benefit and use, as expressed in the receipt or agreement handed contemporaneously to H. O. Stone & Co. And whether that receipt is to be construed as such a contract or agreement that no parol evidence should be admitted to supplement it or explain it, or merely as a memorandum of part of a contract, the whole of which may be proved by parol evidence, (Bradshaw v. Combs, 102 Ill., 428),'the result would be the same. If the paper must bn read entirely by its own light, the agreement is only to repay this money “in case the premises involved in said suit, shall be redeemed from the sale of the Master in Chancery made under said decree in accordance with the law.” That contingency has never happened, and under this instrument, therefore, if it be the only proper evidence of the agreement entered into, the appellants have no claim to recover. If, however, as we think, under such authorities as: Greenleaf on Evidence, Vol. 1, Sec. 282-284a; Ball v. Benjamin, 73 Ill., 39; Donlin v. Deagling, 80 Ill., 608; Ruff v. Jarrett, 94 Ill., 475; Razor v. Razor, 142 Ill., 376; Bradshaw v. Combs, 102 Ill., 428, is the sounder view, parol evidence not inconsistent with this written memorandum is admissible to explain and illuminate it, it remains equally as* plain that the appellants should not recover this money from appellee. For Mr. Conover’s testimony shows very clearly the conditions surrounding the payment of the money and the making of the receipt, and places beyond question the-understanding of the parties, which seems to us plain-enough from the instrument itself, that Dr. Mulvaine would bid in the property for the aggregáte amount of the liens, pay over the cheque to the master as a part of his bid, and return the amount, if he received it in a redemption payment. Such an understanding or agreement is not only not inconsistent with the instrument, but it is the- only one-which would be consistent with it. For an agreement on Dr. Mulvainé’s part to pay back this money on redemption from any less bid than the full amount- due, would be tantamount to a waiver on his part of a guaranty he already had from appellants against loss on account of the mechanics’' liens,—a very improbable thing for him to make.
Mor is it consistent with this instrument or receipt, that the mechanics’ liens were to be paid by the cheque before the sale took place, as was suggested by appellants’ counsel in oral argument. For in that case the aggregate amount remaining due, and for which the property would be sold. and which alone Dr. Mulvaine could have been expected to-bid, would only represent his own claim, and why should he on redemption for that amount pay again to Stone & Co. what he had already paid out to reduce the decree ?
It is urged, however, by the appellants, that whatever might be the rights of the parties if they rested alone on what took place on November 8, 1895, or before, subsequent communications between the appellants and Dr. Mulvaine made a contract which renders appellee liable. We do not agree with this contention. It was very natural for H. O. Stone & Co., when .they found that the sale had not come off, as advertised, and was to be for a considerable time delayed, to suggest that the money should, in the meantime be returned for their use. They had given it to Dr. Mulvaine only for a particular purpose, namely, to pay a portion of the bid he was to make at a sale of the Sobra property. Until that sale was made the use of the money should be. theirs' and not Mulvaine’s. This, by itself, would explain the letters of November 13th and 15th. It is true, the last one Speaks of “cancelling the liens another way,” but if' there were any such intention, it was evidently abandoned, since Dr. Mulvaine, after a conversation, was allowed to retain the money. That Dr. Mulvaine said that he would protect appellants’ interests and see that the money was properly applied, cannot, we think, under the circumstances, be construed to mean anything more than that he would do at the second sale what he had done at the first,—apply the money on the bid which he would make for the full amount due. We do not think that the question of the release of' Mrs. Sobra’s money “in escrow” was then in the mind of' either party. If it were, it may have been obscured by the-feeling that the property was sure to be redeemed.
At all events, it seems to us clear that if at that time it had been decided that the only safe way for the appellants to act was for them to pay the mechanics’ liens and reduce the decree, and Dr. Mulvaine had agreed to that, (and. this-is in effect the contention of appellants, as we understand it), then the appellants would not have acquiesced in his-. retention of the money, nor have waited until December 9 for the payment of the liens, but have taken immediate steps thus to have the decree partially satisfied by the payment of the money in Mulvaine’s hands. There was no reason for waiting, if this was to be the course pursued, and there may well have been reasons connected with the advertisement and sale for not postponing the payment.
We do not think there was error in the admission or exclusion of evidence below, nor in the finding or judgment of the court, which seem to us consistent with the law and the evidence. It is not necessary, therefore, to discuss the twenty-two propositions of law appearing in the record, some as held, some as refused and some as modified. Even if the court below were not strictly correct in them, it would not affect the result here. Lanter v. Hartman, 95 Ill. App., 80; Moffitt-West Drug Co. v. Aldrich, 87 Ill. App., 184; Niagara Fire Ins. Co. v. Bishop, 154 Ill., 9; Stowell v. Moore, 89 Ill., 563.
But we do not find the rulings on the propositions subject to criticism.
The judgment of the Circuit Court .is affirmed.
Affirmed.
