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Statement of the Case.
$7275.15, which was sixty per cent of their entire claim, they, by their agent, Walter M. Smith, executed and delivered to the said John J. Knickerbocker, the attorney for the defendants, at Chicago, an instrument in writing, as follows:
“ • For and in consideration of the sum of seven thousand two hundred and seventy-five and loo ($7275.15) dollars, to us in hand paid by John J. Knickerbocker, of Chicago, Ill., the receipt whereof is hereby acknowledged and confessed, we have sold, assigned, transferred and delivered, and do hereby sell, assign, transfer, set over and deliver to said Knickerbocker, his heirs, executors, administrators and assigns the above and foregoing claim in our favor and against the late firm of Cleaveland, Cummings & Woodruff, and all other claims and demands which we now have or might or could have against the said Cleaveland, Cummings & Woodruff, by reason of the happening of any matter or thing from the beginning of the world to the day of the date hereof, without recourse to us, and authorize and empower said Knickerbocker to sue for, collect, settle, compound and, give acquittance therefor as fully as we could do in person.
«'In witness whereof we have hereunto set our band and seal this 29th day of December, 1883.
“GEORGE C. RICHARDSON & Co., (SEAL.].
“Attached to said instrument are the following:
“Chicago, Sept. 15, 1883. ““Four months after date we promise to pay to the order of ourselves one thousand three hundred and forty-seven to dollars at the Mechanics' National Bank, N.Y., value received. “Due Jan’y 18, 1884.
$1347.99. CLEAVELAND, CUMMINGS & WOODRUFF. “ (Endorsed :) 'Cleaveland, Cummings & Woodruff.'
“Chicago, Sept. 15, 1883. “Four months after date we promise to pay to the order of ourselves one thousand four hundred and twenty-one dol
Statement of the Case.
lars and it at the Mechanics' National Bank, N.Y., value received.
“Due Jan'y 18, 1884. “$1421.41. CLEAVELAND, CUMMINGS & WOODRUFF. "(Endorsed :) 'Cleaveland, Cummings & Woodruff.'
“Mess. Cleaveland, Cummings and Woodruff to George C.
Richardson & Co., debtors. 666 1883. “ Aug. 28. To mdse., 60 days, Sept. 15
333 94 29.
156 06 30.
4783 65 “Sept. 14.
324 74 15.
525 33 « • Oct. 24.
“ And Charles W. Woodruff, one of the said defendants, at the same time, and as part of the same arrangement, delivered to the said agent of the plaintiffs an instrument in writing as follows, viz. : “John J. Knickerbocker.
Jesse Holdom. “Knickerbocker & Holdom, attorneys-at-law, 164 La Salle St.
« « Chicago,
188–. “In consideration of a compromise this day made by Messrs. Geo. C. Richardson & Co. and Messrs. Jay, Langdon & Co., of New York City, of their respective claims against the late firm of Cleaveland, Cummings & Woodruff, of Chicago, Ill., the said Cleaveland, Cummings & Woodruff stipulate and agree not to pay voluntarily to any of their creditors holding claims in excess of one thousand dollars, to exceed sixty per cent on the dollar in settlement: Providing, however, that the payment of attorneys' fees and court costs in all cases
Statement of the Case.
where suits have been heretofore or may hereafter be commenced shall not be considered as an evasion or violation of this agreement.
"CLEAVELAND, CUMMINGS & WOODRUFF. “Dec. 29th, 1883.
“10. In April, 1884, all the mercantile debts of Cleaveland, Cummings & Woodruff had been settled at sixty cents and released except about $88,000. The firm of Vietor & Achelis had not released their claim, but had brought a suit by attachment thereon against James 0. Cleaveland, Cornelius B. Cummings, Charles W. Woodruff and Washington Libbey, which was about to be tried. The attorney of Cleaveland, Cummings & Woodruff paid to Vietor & Achelis sixty cents on the dollar of their claim, who thereupon released their said claim; but at the same time said attorney of Cleaveland, Cummings & Woodruff gave his check (which was afterwards paid) to the attorneys of Vietor & Achelis, for twenty-five per cent on the dollar of said claim, and said attorneys remitted twenty of said twenty-five per cent to Vietor & Achelis. This payment to the attorneys of Vietor & Achelis was a cover under which Vietor & Achelis were to and did receive on their claim more than sixty per cent, and such payment was made, after Vietor & Achelis had refused to take sixty per cent, by agreement between the attorneys of Cleaveland, Cummings & Woodruff and Vietor & Achelis that Vietor & Achelis should receive eighty
“11. The amount due on the original claim is $4850.10, and the interest thereon from December 29th, 1883, to April 14th, 1886, is $679.35, making $5529.45 in all.”
Thereupon a judgment was entered, which stated that the court found the issues for the plaintiffs, and assessed their damages at $5529.45, and overruled a motion by the defenelants for a new trial, and ordered that the plaintiffs recover from the defendants Cleaveland, Cummings and Libbey, survivors of Woodruff, $5529.45 damages and $147.80 costs. To review this judgment, the defendants brought a writ of error.
There was a bill of exceptions, which stated that both par
Citations for Plaintiffs in Error.
ties adduced evidence tending to prove the issues on their respective sides ; that, when the written paper dated October 30, 1883, set forth in the fifth special finding, was offered in evidence, the defendants objected to its introduction, on the ground that it was incompetent and irrelevant, but the court overruled the objection and admitted the paper in evidence, and the defendants excepted; that the plaintiffs also offered in evidence the paper dated December 29, 1883, signed “Cleaveland, Cummings & Woodruff," set forth at the close of the ninth special finding; that the defendants objected to its introduction, on the grounds of variance and incompetency, but the court overruled the objection and admitted the paper in evidence, and the defendants excepted; that evidence was introduced touching the matters named in the tenth special finding, and the defendants adduced evidence tending to show that no payment was made to either of the mercantile creditors by preference, or with a view to discriminate between one of the said creditors and another; that the defendants objected to the evidence tending to show that Vietor & Achelis were paid more than sixty per cent, on the ground that such
payment, if made as claimed by the plaintiffs, was not made voluntarily; that the court overruled the objection, and held that, under the contract of December 29, 1883, signed“ Cleaveland, Cummings & Woodruff,” any payment over sixty per cent was made voluntarily, unless such claim had gone to judgment; that the defendants excepted to such ruling; and that it appeared from the evidence that the borrowed money was paid in full during November, 1883, and each of the mercantile creditors received sixty per cent on their claims, from Cleaveland, Cummings & Woodruff.
Mr. James S. Harlan, (with whom was Mr. S. S. Gregory on the brief,) for plaintiffs in error, cited: Kingsley v. Kingsley, 20 Illinois, 203; Potter v. Green, 6 Allen, 442; Brooks v. White, 2 Met. (Mass.) 283; Goodnow v. Smith, 18 Pick. 414; Sibree v. Tripp, 15 M. & W. 23; Serviss v. McDonnell, 107 N. Y. 260; Graham v. Meyer, 99 N. Y. 611; Carey v. Barrett, 4 C. P. Div. 379; Chicago & Alton Railroad v. Chicago, Ver
Opinion of the Court.
milion &c. Coal Co., 79 Illinois, 121 ; Radich v. Hutchins, 95 U. S. 210, 213; In re Sturges, 8 Bissell, 79.
Mr. J. R. Doolittle, for defendants in error, cited : 2 Parsons Contr. 6 ed. 671, 672; Serviss v. McDonnell, 107 N. Y. 260, 265; Hefter v. Cahn, 73 Illinois, 296, 300; Bump on Composition, 20, 23; Seving v. Gale, 28 Indiana, 486; Elfelt v. Snow, 2 Sawyer, 94, 106; Hoare v. Dawes, 1 Doug. 371; Robinson v. Wilkinson, 3 Price, 538; Graham v. Meyer, 99 N. Y. 611; Dambmann v. Schulting, 75 N. Y. 55; S. C. (2d trial) 85 N. Y. 622, 623; Carey v. Barrett, 4 C. P. Div. (1879) 379, 381, 382; Kingsley v. Kingsley, 20 Illinois, 203; Miller v. Manice, 6 Hill, 114; Wann v. MoNulty, 2 Gilman (Ill.) 355; Bradshaw v. Combs, 102 Illinois, 428, 433; 1 Greenleaf Ev., 12 ed. 34, § 284; Morgan v. Griffith, L. R. 6 Ex. 70; Lewis v. Seabury, 74 N. Y. 409; Chapin v. Dobson, 78 N. Y. 74.
MR. JUSTICE BLATCHFORD, after stating the case as above reported, delivered the opinion of the court.
It is contended for the plaintiffs that their assignment to Knickerbocker was not binding upon them, because the defendants did not disclose to them the financial standing of Libbey, nor the fact of his liability as a general partner in the firm of Cleaveland, Cummings & Woodruff, nor the liability in regard to the debts of that firm assumed by him by the paper set forth in the fifth finding.
But the ninth finding sets forth fully what took place between Knickerbocker and the plaintiffs, on the visit of the former to the latter, at New York, to propose to them to accept from the defendants sixty cents on the dollar. That finding states that Knickerbocker explained the situation of the assets of Cleaveland, Cummings & Woodruff, saying that the borrowed money was to be paid in full, which would not leave enough to pay quite sixty per cent of the remaining indebtedness (a fact which was true, according to the seventh finding); that Libbey's liability as a member of the firm was spoken of, when Knickerbocker stated to the plaintiffs that he