Gorham et al. v. Peyton.

GARDINER T. GORHAM and LEWIS DURLEY, appellants, v. FRANCIS PEYTON, appellee.

Appeal from the Municipal Court of the City of Chicago.

In an action by the assignee against the maker of a promissory note, it is a good defence, that the note was given in consideration of a tract of land, and that, at the time of the making of the note, it was expressly understood and agreed between the payee and the defendant, that he should not be called on for the payment of the note, until the payee should obtain a patent from the United States for the said land, which he expected would be obtained before, or at furthest, at the maturity of the note; that the assignee, at the time of the transfer of the note to him, had notice of the consideration of the note, and of said agreement, and promised that he would not sue the defendant; and that the payee had not obtained a patent for the land, although a full consideration was paid for the note by the assignee.

The want of recollection of one witness cannot rebut the positive testimony of another.

THIS was an action of assumpsit brought by the appellee against the appellants, upon the following promissory note:

"$1000. Thirteen months after date, value received, we promise to pay to J. B. Beaubien, or order, the sum of one thousand dollars, with interest, at six per cent.

"GORHAM & DURLEY.

On the back of said note was the following assignment: "For value received, I hereby assign the within note to Francis Peyton. J. B. BEAUBIEN.

"Chicago, 24th Aug. 1837."

The cause was tried at the April term, 1838, of the Court below, the Hon. Thomas Ford presiding. Judgment was rendered against the defendants, for $1125, from which they appealed to this Court.

J. D. CATON, J. Y. SCAMMON, and N. B. JUDD, for the appellants. CATON Contended, that in addition to the evidence. showing that the appellee had notice of the consideration of the note, at the time of the assignment, the note was transferred after it became due, a month at common law being a lunar month. He cited 3 Stark. Ev. 1388 - 89; Chit. on Bills 325-26; R. L. 483-84.

GILES SPRING and FRANCIS PEYTON, for the appellees.

WILSON, Chief Justice, delivered the opinion of the Court: This case differs from those usually brought up for review, inasmuch as the questions presented for adjudication are those of fact, and not of law. The action was brought by Peyton, as assignee of Beaubien, against Gorham & Durley, on a note made

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Gorham et al. v. Peyton.

by them to Beaubien. The defence set up by the defendants is, first, a want of consideration, and that the plaintiff knew the fact, at the time the note was assigned to him; secondly, that the consideration for the note was a part of Beaubien's Addition to the town of Chicago, for which Beaubien was to give a good and sufficient deed, which was to be founded on a patent from the United States to Beaubien, at the time the note became due ; and that Beaubien never did obtain a patent from the United States, and never did give the title stipulated for, and that the plaintiff was well advised of these facts at the time of the assign

ment.

The whole case was submitted to the Court, without the intervention of a jury. The Court acted, therefore, in the twofold character of a court and jury, and its decision upon the facts of the case is, therefore, entitled to the same weight as that of a jury; and we would not disturb the decision in this case, if the evidence upon which it was founded, was either inconclusive, contradictory, or doubtful; but we cannot regard it as such. The characters of the witnesses are unimpeached, and their testimony is full, direct, and positive in support of the issue. Hartzell testifies, that "he was present when the note was given by Gorham & Durley to Beaubien; and that the consideration for it was a part of Beaubien's Addition to Chicago, and that it was expressly understood and agreed between Beaubien and the defendants, that they should not be called on for the payment of the note until Beaubien should obtain a patent from the United States, for the said land, which Beaubien expected would be done before, or, at furthest, as early as the maturity of the note.'

Beaubien testified, that he had not obtained a patent for the land referred to.'

Markoe swore, that "he was present at the negotiation for the transfer of the note from Beaubien to the plaintiff, and that Beaubien, at the time of the transfer of the note, expressly stated to the plaintiff, that the note was given by said defendants to said Beaubien, for some lots in Beaubien's Addition to Chicago;' and that it was agreed, at the time said note was given, between the said Beaubien and the said defendants, that the said defendants should not be called upon for the payment of the said note, until the said Beaubien should be able to put said defendants in possession of said land, and the said defendants should be put in possession of said lots; that, at the time aforesaid, the said Beaubien stated to said plaintiff, he would not have him sue the said defendants on the said note, for all of his Reserve,' or all of his Addition to Chicago, until he could put them in possession; that said plaintiff, at that time, expressly agreed, that he would not sue the said defendants on the said note."

This was all the evidence given in the case, except the additional

Townsend et al. v. Griggs.

statement of Beaubien, that the note was assigned for a full consideration, and that he did not recollect having made the statements imputed to him by Markoe. This want of recollection, however, cannot rebut the positive testimony of Markoe. A witness may not remember what was said, but he cannot recollect that which was not said. Markoe could not have remembered the statement of Beaubien, had it not been made; his testimony must, therefore, be true, or wilfully false, while Beaubien's testimony may be in strict accordance with his recollection; yet, owing to the treachery of his memory, untrue, in fact. According therefore to the rules of evidence, the affirmative testimony of Markoe must outweigh the negative testimony of Beaubien, who does not say that he did not inform the plaintiff for what consideration the note was given; but merely, that he does not remember to have done so.

From all the evidence in the case, we are forced to the conclusion, that the consideration for which the note was given was never received by the defendants; nor can we come to any other conclusion, than that the character of the consideration was communicated to the plaintiff, at the time the note was assigned to him. If the evidence would admit of a rational doubt upon this point, it would become necessary to enquire, whether, in this case, it was incumbent upon the defendant to prove this fact, in order to make out his defence, but we believe the evidence to be so conclusive upon this point, as to supersede the necessity of this enquiry.

The judgment of the Court below is reversed, and judgment rendered for the defendant for costs.

Judgment reversed.

JEREMIAH A. TOWNSEND and MARY C. TOWNSEND, et al., plaintiffs in error, v. STEPHEN GRIGGS, Treasurer of the Alton Manufacturing Company, defendant in

error.

Error to Madison.

The return of the sheriff upon a summons in chancery, stated that the same was executed by leaving true copies thereof at the residence of the defendants, in the hands of white persons over fourteen years of age, after having explained to them the contents thereof: Held, that the return was not sufficient.

Where a summons in chancery is served by leaving a copy at the residence of the defendant, the return of the officer must show that the person with whom the summons was left, was of the family of the defendant.

THIS was a suit in chancery, by the defendant in error, against the plaintiffs in error, in the Madison Circuit Court, to foreclose a mortgage. The return of the sheriff upon the summons, stated that he had executed the same, "by leaving true copies of this writ at

Townsend et al. v. Griggs.

the residence of the within named JEREMIAH A. TOWNSEND and MARY C. TOWNSEND, in the hands of white persons over fourteen years of age, after having explained to them the contents thereof."

At the return term of the process, (February term, 1840) the defendants were defaulted, and a decree pro confesso entered against them.

At the August term, 1840, of the Court below, the Hon. Sidney Breese presiding, the defendants filed affidavits, showing that they had no residence in Alton at the time of the alleged service of process upon them, and that the copies of the summons were left at the residence of a Mr. Hart; and that Townsend had no notice of the pendency of the suit, until after the adjournment of the term of the Court in which the decree was entered; and moved to set aside the decree. The motion was overruled, and the defendants excepted to the opinion of the Court, and brought the cause to this Court by writ of error.

G. T. M. DAVIS, for the plaintiffs in error.

A. T. BLEDSOE, for the defendant in error.

SMITH, Justice, delivered the opinion of the Court. (1)

The service of the process on Townsend and wife, is clearly defective. The 4th section of the act prescribing the mode of service, declares, that a copy of the summons shall be "left at the usual place of abode of the defendants, with some white person of the family, of the age of ten years or upwards, and informing such person of the contents thereof." (2) The return in this case is defective. It does not show the copy to have been left with any person of" the family." The broad grounds of service given by the statute, require a rigid adherence to its letter and import. For aught that appears by the return, the persons with whom the copy was left, may have had no connexion with, or knowledge of, the family of the defendants, or the defendants themselves. It does not become necessary to look into the depositions offered on the application to set aside the judgment in the Circuit Court. If they were however examined, it would be seen, that the place where the summons was left, was not the residence of the defendants; nor did the persons with whom the same was left, have any connexion with the defendants' family. The necessity, then, of requiring a rigid compliance with the statute, as to the mode of service, is most manifest.

The judgment of the Circuit Court is reversed with costs.
Judgment reversed.

Note. See Mitcheltree v. Stewart et al., Ante 17-20, and note; Beaubien v. Sabin, Post.

(1) Lockwood, Justice, was not present at the argument of this cause. (2) R. L. 119; Gale's Stat. 139.

Heaton v. Kemper.

JAMES HEATON, plaintiff in error, v. JOSEPH Kemper, defendant in error.

Error to Edgar.

Under a plea of performance, and a special plea alleging a failure on the part of the plaintiff, to perform his part of a dependent covenant, the Circuit Court instructed the jury," that what the plaintiff or defendant was bound to do, was a matter of fact for the jury to determine, from the covenant, and the other evidence adduced by the parties; and that it was not a matter of law for the Court to decide;" Held, that the instruction was not erroneous. The Supreme Court will not reverse the judgment of a Circuit Court, for a refusal to instruct the jury upon an abstract principle of law, unless the applicability of such instruction to the case in issue, is shown.

THIS was an action of covenant commenced by Heaton against Kemper, in the Edgar Circuit Court, upon the agreement set forth in the following bill of exceptions. The declaration averred a performance on the part of the plaintiff, of his part of the agreement, and that a large quantity of hides, of the value of $1000, " for want of proper care on the part of the defendant, did suffer; and a certain other large quantity of hides," of the like value, "for the want of proper care on the part of the defendant, did spoil."

The defendant pleaded, first, that he had kept and performed his covenants; and secondly, "that there was need and occasion for divers tools and materials, to wit: one bark-mill, one horse, and one fleshing-knife," &c., which he requested the plaintiff to furnish him, but which he neglected to do. The plaintiff replied, that he did furnish the tools and materials mentioned in the defendant's special plea, and took issue to the country. The cause was tried at the June term, 1840, before the Hon. Justin Harlan and a jury, and a verdict rendered for the defendant. A motion for a new trial was made and overruled, and the following bill of exceptions taken :

"Be it remembered, that on the trial of the above entitled cause, the plaintiff produced and read to the jury, in evidence, the following indenture, which was the writing declared on in the above cause: April 5th, 1837. This day enter into an agreement between Joseph Kemper of the one part, and James Heaton of the other part. Joseph Kemper binds himself to carry on the tanning business for the said Heaton, one year; and binds himself to be attentive and careful that no hides spoil or suffer, on his part, for the term of one year. For such consideration, the said Heaton binds himself to give said Kemper $200, and furnish him with a house and garden, and fire wood, and forty bushels of corn, and one barrel of flour, as he may want it; in the course of the year. Said Heaton binds himself to furnish him necessary tools and materials to carry the business on. Kemper binds himself to commence on or before the 15th of April, 1837, and continue one year. And, also,