| Ill. App. Ct. | Feb 4, 1890
Whether the instrument sued on is a promissory note does not seem to us an important question. It must be conceded that it is a written contract to pay a certain sum of money, payment in the first instance to be made out of the profits of the joint tobacco purchase. It must also be conceded that, interpreting the instrument by its terms, if there should be no profits of this tobacco purchase, then it was payable in money, and if there were profits, but not enough to pay the amount in full, then the balance of the sum mentioned in the instrument should be paid in money. Bilderback v. Burlingame, 27 Ill. 338" date_filed="1862-01-15" court="Ill." case_name="Bilderback v. Burlingame">27 Ill. 338.
There is no question under this evidence that appellee made and delivered this written instrument to appellant, and having done so it must stand, and be enforced according to its terms, unless by some subsequent agreement between the parties to it, it was altered or discharged. Of course the maker of a written contract which has been delivered may resist its enforcement, on the ground that it was obtained by fraud; that it was made without consideration, or that the consideration has failed.
If the agreement be an absolute undertaking, then he will not be permitted to show by parol testimony that in no event was he to incur any personal liability by the writing, because to do so would be to contradict and vary, by parol, the terms of his positive agreement. As was said in Hypes v. Griffin, Adm’r, 89 Ill. 137, “ Whatever may be the decisions elsewhere, the authorities in this State are full to the point that a party will not be permitted to show by oral testimony that his written agreement was not in fact to be binding on him.”
We think the defendant is entitled, under his plea of want of consideration, to show, if he can, that the indebtedness for which the instrument sued on was given, had before its execution been wiped out and paid, but he should not have been permitted to show by parol that the instrument sued on was not what it purports to be, or that it was not to be binding 'on him.
It will be seen also, under the view of the law above set forth, that plaintiff’s refused instructions, numbered one and three, should have been given, and the second instruction given for defendant should not have been given. The third instruction given for defendant starts out with the assertion that the admissions of a party to a civil suit are strong evidence against him. This is contrary to the recognized rule as to the force to be given to admissions as evidence, but is clearly objectionable for the further reason, that it is not the province of the court to indicate to the jury the force of any evidence admitted to them, except possibly when, if true, it works an estoppel. The instruction as a whole ’ should not have been given.
The errors indicated are sufficient to reverse the judgment. While we do not purpose to discuss the evidence generally, we will call attention to the fact that appellee claims that he had declined the very proposition contained in the letter of August 31st, when made to him by appellant about the 20th day of August, 1878. He says that in the talk of that date he declined this offer, but “ I said I was willing to take up the note on the trade; if he would agree to give me the overplus in case there was any; he studied about it awhile and said: “I will study about it, and when I get to Evansville I will write yon.”
How, the letter of August 31st clearly did not accept this offer, but says: “I have been thinking over the trade we were talking about, your one-third in the tobacco, and have come to the conclusion to take the tobacco and give you credit for your half of the note; the note and interest is §2,523.25, and half of it is §1,261.12|.” How, does the proof show this offer accepted by the appellee ? There is nothing in the testimony following the receipt of this letter except the instrument sued on. By its terms appellee clearly proposed to retain his interest in the profits of the tobacco, and out of his profits to pay his half of the large note. We do not see how it can be possibly interpreted, looking to all the instrument as an acceptance of the offer made in the letter of August 31st. If appellant’s offer in this letter was not accepted by appellee, then it does not appear that there was any sale of appellee’s interest in the tobacco. Had appellee added to the due-bill, “ But in case the profits in the tobacco do not amount to §1,261.08 and interest, said Westbrook is to take said profits in full satisfaction of this due-bill,” and Westbrook had accepted the instrument so written, this controversy would not have arisen. If the intention of appellee in giving this due-bill was what he now claims it was, it is, to say the least, strange that some such provision as above indicated was not inserted in the due-bill.
If it be claimed that the statement accompanying the letter is to be considered with the letter, in fixing the true character of the proposition of Westbrook, still there is a failure to sustain appellee’s theory that this letter and statement were an acceptance of appellee’s offer to give his interest in the tobacco profits in satisfaction of his debt to Westbrook, provided, if the profits exceeded the debt, this excess was to be paid over to appellee. The proposition in the letter is to buy Howell’s interest in the tobacco at the fixed price of §1,261.12. If Howell’s claim is true, the statement should, and in the natural course of business would have been, that notwithstanding the purchase and sale, Howell should have any excess of his interest in the profit on the tobacco, when ascertained, over the amount of the debt. As it reads, if the two are to be construed together, the only intelligent interpretation to be placed upon the letter and statement is, that notwithstanding the sale by Howell to Westbrook, of his interest in the tobacco, this sale was, in fact, only colorable, and Howell should still be entitled to receive his full share in the profits realized upon a sale of the tobacco. This interpretation accords with Westbrook’s explanation of the reason why this letter and statement were written and sent to Howell. The letter would show, if controversy arose with Howell’s creditors, that he had transferred his interest in the tobacco to Westbrook, while the statement, as between appellant and appellee, would still entitle Howell to his full share in the profits when the tobacco was sold.
The judgment of the Circuit Court is reversed and the cause remanded.
Reversed and remanded.