| Ill. | Jan 15, 1878
delivered the opinion of the Court:
Without considering other evidence than that furnished by the affidavit of appellant Wyatt, we think it is clear no case is made for equitable relief. It is there alleged, that in the settlement between Milton Mayfield and that appellant, the former told the latter that what was coming from Burch should be paid on the note of $1000 to Robert Seymour, and what that appellant was found, in that settlement, to be indebted to Mayfield, should also be paid on that note; that after Milton Mayfield had settled with Burch, and taken the note for $519.59, and while appellant Wyatt and he were trying to settle their part of the business and other matters between them, Milton Mayfield took from his pocket the Burch note, handed it to appellant Wyatt, and stated that he had the note drawn payable to Robert Seymour for the express purpose of liquidating a part of the $1000 note, and told appellant Wyatt that the first time he should see Robert Seymour he would apply the Burch note on the note given by himself and that appellant; and that appellant Wyatt was surety, only, on the $1000 note, Milton Mayfield being the principal,
It is to be borne in mind it is the equitable, not the legal, aspect of these facts that is to be considered.
Milton Mayfield undoubtedly intended, when the Burch note was executed, that it should be delivered to Seymour as a payment on the $1000 note. But this was a mere unexecuted intention. There was no new consideration passing from appellant Wyatt to him, sufficient to support the promise and make it a valid contract, so as to be susceptible of enforcement in the courts. Appellant Wyatt did no act on the faith of this promise whereby his condition was changed to his prejudice, so as to create an estoppel in pais.
There was no trust created, as argued by counsel for appellants, in behalf of Seymour, because Seymour never constituted Milton Mayfield his agent or trustee for that purpose, and it does not appear that the note was executed pursuant to any prior agreement or understanding between Milton Mayfield and Seymour. Seymour could not be compelled to accept the Burch note, and credit the amount on the $1000 note, against his will, and he would be concluded by no promise to that effect until after an actual delivery to and acceptance by him of the Burch note.
Until a delivery of the Burch note to Seymour, and its acceptance by him, it was equitably the property of Milton Mayfield. This equity he has transferred to appellee Francis Mayfield. Seymour has no equity which he can enforce as against the note, and the bill, indeed, is not framed on that hypothesis. The equity alleged in the bill is in favor of appellant Wyatt, and, unfortunately, it has no other foundation than the naked promise of his principal, unsupported by any legal consideration, and not accompanied by circumstances creating an estoppel in pais. It is as worthless as any other delusive promise of a failing creditor in regard to his future intentions of securing his debts.
The decree is affirmed.
Decree affirmed.