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Mathers v. Carter.




STATUTE OF FRAUDS.-Where a person surrendered a bond for a deed which he held against another, in consideration that the latter would pay to a third person the amount expressed in the note, such promise is not within the Statute of Frauds, as being a promise to pay the debt of another, but is an independent contract, upon which such third person may maintain an action in his own name against the promisor.

APPEAL from the Circuit Court of Douglas county; the Hon. OLIVER L. DAVIS, Judge, presiding. Opinion filed October 7,


Mr. MCHENRY BROOKS, for appellant; that this was an independent undertaking, not within the Statute of Frauds, and hence need not be in writing, cited Eddy v. Roberts, 17 Ill. 505; Brown v. Strait, 19 Ill. 88; Rabberman v. Wiskamp, 54 Ill. 179; Wilson v. Bevans, 55 Ill. 232; Beasley v. Webster, 64 Ill. 458; Hayward v. Gunn, 82 Ill. 385; Clifford v. Luhring, 69 Ill. 401; Meyer v. Hartman, 72 1ll. 442; Bunting v. Darbyshi re, 75 Ill. 408; Scott v. White, 71 Ill. 287; Prather v. Vineyard, 4 Gilm. 40; Runde v. Runde, 59 Ill. 98; Waldon v. Karr, 88 Ill. 49; Curtis v. Sage, 35 Ill. 22.

The design of the statute was to prevent fraud, and it should not be extended to a case not clearly within its letter and spirit: Bryans v. Buckmaster, Breese, 408; The People v. Canal Com'rs, 3 Scam. 153; Bruce v. Schuyler, 4 Gilm. 221; Cadwallader v. Harris, 76 Ill. 370.

Messrs. BUNDY & WOLVERTON and Mr. T. D. MINTURN, for appellee; that the contract is within the Statute of Frauds, cited Rev. Stat. 1877, 521; First Baptist Church v. Hyde, 40 Ill. 150; Ballingall v. Bradley, 16 Ill. 373; Williams v. Corbett, 28 Ill. 262; Scott v. Thomas, 1 Scam. 58; Laidlou v. Hatch, 75 Ill. 11; Patmore v. Haggard, 78 Ill. 607; Steele v.

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Mathers v. Carter.

First Nat. Bank, 60 Ill. 23; Durant v. Rogers, 71 Ill. 121; McConnel v. Brillhart, 17 Ill. 354; Everett v. Morrison, Breese, 79; Eddy v. Roberts, 17 Ill. 505; Hite v. Wells, 17 Ill. SS.

HIGBEE, J. The declaration in this case avers in substance that one Clark Elkin was, on the 30th day of August, 1879, indebted to John Mathers, since deceased, in the sum of six hundred dollars, for which said Mathers then held his notes; that Elkin was at the same time the owner and holder of a bond for a deed executed to him by appellee Rucker K. Carter, in and by which bond Carter had agreed to convey to Elkin twenty-five acres of land in said county of Douglas.

That Carter then and there undertook and promised said Elkin that he would pay to said Mathers the amount so due from Elkin to Mathers, in consideration that he, Elkin, would' surrender up and deliver to him the bond aforesaid, and that Elkin did then and there surrender to Carter the said bond for a deed, in consideration of said promise.

To this declaration defendant below pleaded the Statute of Frauds; that said promise was a special promise to answer for the debt of another, and that the same was not in writing, signed by defendant or any person thereto by him lawfully authorized.

A demurrer was interposed by appellant to this plea, and overruled by the court, and appellant electing to abide by his demurrer, judgment was rendered against him for costs.

The only question presented for our decision is, as to the sufficiency of the plea.

The contract declared on was a new and independent agreement by which Elkins surrendered up the bond for a deed he held against appellee, in consideration of appellee's promise to pay Mathers the amount due on said notes.

It was simply a promise to pay the consideration for the surrender of the bond to a third person, and would have been equally binding and valid against Carter if Elkins had not been indebted to Mathers.

It is well settled that where one enters into a simple contract

Bourland v. Gibson.

with another for the benefit of a third, the person for whose benefit the contract is made may maintain an action for the breach thereof in his own name, and such contract is not within the Statute of Frauds. Eddy et al. v. Roberts, 17 Ill. 505; Rabberman v. Wiskamp, 54 Ill. 179; Brown v. Strait, 19 Ill. 88; Beasley et al. v. Webster, 64 Ill. 458; Wilson v. Bevins, 58 Ill. 232; Runde v. Runde, 59 Ill. 98.

This was not a special promise to answer for the debt of another. It was a promise to pay the price agreed upon for the surrender of the bond to another, and the statute has no application to it.

The judgment is reversed and the cause remanded, with directions to the circuit court to sustain the demurrer to the plea.

Reversed and remanded.




CONTRACT-FAILURE OF CONSIDERATION IN NOTE.-In an action upon a note, the defendants pleaded failure of consideration, because of a failure to deliver a certain deed at the time the note was executed. Upon this point the evidence was conflicting, but the plaintiff having at one time written the de fendants a letter, in which he had stated his construction of the contract as meaning that the deed was to be delivered upon payment of the note in question; held, that the defendants by their silence after receiving the letter, would be deemed to have acquiesced in such a construction of the contract, and the plea of failure of consideration was not supported by the evidence.

APPEAL from the Circuit Court of DeWitt county; the Hon. LYMAN LACEY, Judge, presiding. Opinion filed October 7,


Mr. O. J. BAILEY, for appellant; that the allegations and proofs correspond, cited Sherman v. Blackman, 24 Ill. 350. Under a plea of total failure of consideration a partial fail ure can not be shown: Swain v. Cawood, 2 Seam, 505.

Bourland v. Gibson.

The consideration must be set forth exactly: Taylor v. Sprinkle, Breese, 17; Vining v. Leaman, 45 Ill. 246.

Possession of the land is a good consideration: Laforge v. Matthews, 68 Ill. 328.

Pleadings are to be taken most strongly against the pleader: Vining v. Leaman, 45 Ill. 246.

Generally: Buchanan v. International Bank, 78 Ill. 500; Bourland v. Gibson, 91 Ill. 470.

Messrs. WELDON & MCNULTA, for appellees.

DAVIS, J. This was an action brought by appellant to recover on a promissory note, executed by appellees, for $2,100, dated 22d February, 1875, and payable one year after date. The defense interposed was a failure of the consideration of the


It appears from the record, that George L. Gibson, who had previously been the owner of a tract of land, which had been sold under a trust deed, and conveyed to Robert Patterson by appellant, as trustee, was desirous of re-purchasing the land, and an arrangement was entered into between Gibson and Patterson, through Bourland, for the re-purchase of the property on the following terms: Gibson was to pay $2,000 cash, and give his note for $4,000, due in five years, secured by a trust deed on the property, with Bourland as trustee. All the papers, including the deed from Patterson to Gibson, were prepared, and were in the hands of Bourland, ready to be delivered upon the payment of the $2,000. A draft was drawn for that amount by Gibson on Thomas Snell, and returned protested for non-payment, and Gibson was unable to make the cash payment. It was then agreed that in lieu of the money Gibson should give his note for $2,100, with Snell as surety, payable in one year from date, the addition of $100 being for commissions due Bourland, and accordingly the note sued upon was executed and sent by mail to Bourland, and on the 26th of February, 1875, he wrote the following letter to Gibson, and the same was received by him a few days thereafter:

Bourland v. Gibson.


"PEORIA, Ill., February 26, 1875.

"Dear Sir: Yours of 28th inst. is received. I have proposed to Gen. Patterson to hold the papers just as they now stand until the $2,000 is paid, and then convey the property back to you, and record the new mortgage for $4,000 I now hold as security for the Patterson loan.

"1. The original trust deed and note of $6,000 foreclosed, and trustee's deed to Gen. Patterson on record.

"2. New note of 4,000, secured by the new mortgage, due in 1880; ten per cent. annually.

"3. Your note of $2,100, with Snell as security, due February 22, 1876, with ten per cent. interest. If this last note is paid, the old note and trust deed are to be given up and the new mortgage to be recorded, and Gen'l Patterson's deed to you (which I also hold) is to be delivered.

"Yours truly,


The note so given not having been paid at maturity, this suit was instituted, and the deed from Patterson to Gibson not having been delivered by Bourland to the latter, but retained by Bourland, the plea of failure of consideration of the note was interposed. The jury trying the case below found the issue for appellees, and the court upon overruling a motion for a new trial rendered a judgment against appellant. for costs, to reverse which he appeals.

This case was tried once before on the same plea, and with a like result, and was taken by appeal to the Supreme Court, and by that court reversed and remanded upon the ground that the circumstances proved clearly show that the deed was only to be delivered upon payment of the note for $2,100. Bourland v. Gibson et al. 91 Ill. 470.

It now comes up to us on the record made on the new trial, and the only question is whether the court erred in overruling appellant's motion for a new trial.

The evidence of the two witnesses on each side who testified for the respective parties was conflicting. The testimony of Gibson and his son sustaining the plea, while that of Bourland

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