Citations
- 24 Ill. App. 352
Full opinion text
Lacey, J.
This was a suit based on a promissory note in form assigned to appellee, given by appellants to one C. P. Fox, in the sum of $500, due on or before the first of January, 1886, dated March 11, 1885, with interest. There were no pleas except the special pleas, the plea of the general issue having been withdrawn.
The appellee demurred to each and all of the special pleas and the demurrer was sustained by the court. The appellant abiding his pleas, the court gave judgments on the note against appellant.
From this judgment appeal is taken and the action of the court questioned as to its correctness. We are of the opinion that the second special plea was good. It was a plea to the declaration except $25, showing a partial failure of consideration to the amount of $475.
By the plea it is averred that the consideration of the note was the purchase, by appellant, of and from a pretended association calling itself the Ohio, Indiana and Michigan Bohemian Oat Association, for the introduction and sale of Bohemian oats, of fifty bushels of such oats, through O.- P. Fox, payee of said note, who at the time of purchase was the agent of said pretended association, and sold said oats to the defendant as such agent; that at the time it was understood and agreed then and there, by and between the said pretended association and the appellant, that the said oats .were purchased by defendant for seed; and as part of the consideration for the giving of the said note by appellant, the said association, through its agent, agreed with appellant in writing at the time of making the said note, and as a part of the same transaction, to sell for appellant out of the crop to be raised by him in 1885, from such seed, 100 bushels of said oats at $10 per bushel, before December 1, 1885, and appellant should not be called upon to pay any part of said.note until and unless such sale for defendant of 100 bushels of oats, at $10 per bushel, should have been first made by said association, and although appellant, in 1885, raised from the said oats over 100 bushels of like oats, and has at all times since the harvest of 1885 had said 100 bushels of said crop ready for sale by said association, and at divers times since the said harvest and prior to December 1, 1885, has requested said association to sell said 100 bushels of said oats for appellant, yet the association have wholly failed to sell for defendant any part of the said 100 bushels of oats; and appellant avers that said fifty bushels of said oats were at no time worth to exceed the sum of $25. And the appellant avers that the said appellee received the said note with full notice and knowledge of said undertaking of said association to sell said 100 "bushels of the said oats for appellant, and that said note was not to be paid by appellant until and unless such sale was first made by said association for appellant, closing with a verification.
It will be noticed that this note, which is only a note in form, and the written agreement, constituted one contract as between the appellant and Fox, and as between the former and any assignee with notice of the agreement. It is not in reality a note when the writings are taken together and read as one contract.
It amounted to an agreement that the appellant should take the fifty bushels of oats at §500 and sow the same, and when the new crop was secured 100 bushels of them should be sold by the pretended association for §1,000. The sale was in substance guaranteed. ¡Nothing was to be paid until all this was accomplished. It was a very roseate agreement on the part of the appellant.
Without any risk, except the possible failure of the crop, the appellant had an almost certain prospect to get enough out of the transaction to pay him for the original seed, §500 in cash besides, and his entire crop of oats, save the 100 bushels sold. He little suspected the intended fraud on the part of the oily-tongued agent bearing the, significant name of Fox.
He could not see that Fox intended to transfer his note to an innocent holder and then refuse to fulfill his part of the agreement, which it may be reasonable to suppose would be hard to enforce either against the “ Ohio, Indiana