Ira Stout, Plaintiff in error v Edson Whitney, defendant in error Lawsuit

Source: Asa Tyrer-circuit Court Records Of Adams Co, Il
Written: June 18, 1830

Source: Records Of Cases Illinois
Written: 1850

Ira Stout, plaintiff in error, v. Edson Whitney, defendant in error.

Error to Adams.

On demurrer to a declaration reciting a written contract and the circumstances
under which it was made, the writing must be construed in the light presented
by the declaration. The defendant cannot demur, and then suggest that other
circumstances may exist, which, if true, would show that the parties intended
to express a different meaning.

In the construction to be given to written instruments, the intention of the
parties must govern; and each part of the instrument must be viewed in the
light of the other parts, in order to arrive at that intention. (a)
If demurrers are filed to each of several counts in a declaration, assigning
different breaches of a contract, if there is one good assignment in a count,
the demurrer must be overruled. (b)

This was an action of covenant brought on an agreement between the parties,
which will be found in the following count, which was the fourth of the
declaration. Demurrers were filed to each of the counts, to which there was a
joinder, and the Circuit Court of Adams county, Minshall, Judge, presiding,
sustained the demurrers, whereupon the plaintiff in the court below sued out
this writ of error. The judgment in the Circuit Court was rendered at October
term, 1850.

"And also for that, whereas, before the making of the articles of agreement
hereinafter mentioned, to wit: On the twentieth day of March, A. D. 1848, the
said plaintiff of the one part, and the said defendant of the other part, made
their certain other articles of agreement, under their respective hands and
seals of that date, in substance as follows, to wit:

"Articles of agreement made and entered into this twentieth day of March,
1848, between Ira Stout, of the one part, and Edson Whitney, of the other
part, both of Hancock county, Illinois, witness, that the said Stout and
Whitney have agreed and entered into the following arrangements in regard to
carrying on their mercantile business in the town of Lima, Adams county,
Illinois,
to wit: The said Stout agrees to furnish a quantity of goods and groceries,
etc., etc., to the said Whitney, in the town of Lima, all to his own expense,
account and usage, and pay the rent of the store room rented of Ketcham, also
furnish said Whitney from time to time such goods as most suitable for sale,
said Whitney on his part has to give his personal services to the
establishment, manage, sell and take good care of said goods, all to his own
expense and discretion, and on the sale of said goods, the profits arising
therefrom is to be equally divided between the parties. The said Whitney
agrees to return to the said Stout all the goods which are not sold at the
expiration or close of this contract. It is agreed by the parties, that if any
dissatisfaction should arise between the parties, either may withdraw on
reasonable and proper terms, to be decided by three disinterested persons. It
is agreed that whatever articles the said Whitney may use for his own family,
are to be charged at cost. The said Whitney agrees to take good care of said
goods in every possible manner, but is not responsible for any unavoidable
accidents to said goods. Neither of the parties are to make use of the other's
name without their written consent. The terms of this agreement shall cease,
and be at an end, at the expiration of one year from this date; which said
articles of agreement were in full force from the time of the making thereof
until the time of the making the said articles of agreement hereinafter
mentioned, and are the same articles of agreement mentioned in said articles
of agreement hereinafter mentioned. And also for that, whereas, the said
plaintiff, at the time of the making the said articles of agreement,
hereinafter set out, and for a long space of time thereafter, to wit, for the
space of three months thereafter, was engaged in the mercantile business, and
had a store near Stimpson's Mill, in the county of Hancock, in said state. And
also for that, whereas, the said plaintiff, after the making of the said
articles of agreement hereinbefore set out, and under and in pursuance
thereof, and before the making of the said articles of agreement hereinafter
mentioned, furnished and delivered to the said defendant, a certain lot of
goods of the said plaintiff, out of his, the said plaintiff's store, to be
disposed of, and accounted for by the said defendant, according to the effect,
true intent and meaning of the said articles of agreement hereinbefore set
out, and also furnished and rendered to the said defendant a bill of the same;
which said lot of goods was the first lot of goods was the first lot of goods
furnished and delivered by the said plaintiff to the said defendant, under and
in pursuance of the said articles of agreement hereinbefore set out, and are
the same goods mentioned in the said articles of agreement hereinafter
mentioned, as having been furnished by the said Stout, out of the former store
near Stimpson's Mill. And also for that, whereas, the said plaintiff, after
the making of the said articles of agreement hereinbefore set out, and under
and in pursuance thereof, and also after the said lot of goods above mentioned
were furnished and delivered to the said defendant, as hereinbefore stated,
and before the making of the said articles of agreement hereinafter mentioned,
purchased at his own proper cost and charges, divers and sundry goods in the
city of St. Louis, for the said Lima store, which said goods last mentioned
were, before the making of the said articles of agreement hereinafter
mentioned, furnished and delivered to the said defendant, for the said Lima
store, and are the same goods mentioned in the said articles of agreement
hereinafter mentioned, as having been purchased in St. Louis, for the said
Lima store, before the making of the said articles of agreement hereinafter
mentioned, to be there disposed of and accounted for, by the said defendant,
according to the effect, true intent, and meaning of the said articles of
agreement hereinbefore set out. And also for that, whereas, at the time of the
making of the said articles of agreement hereinafter mentioned, divers and
sundry of the said goods had been sold, by the said defendant, on credit, for
which the said defendant, at the time of the making of the said articles of
agreement hereinafter mentioned, held divers and sundry book accounts, notes
and claims on and against the purchasers thereof, which said notes, book
accounts and claims, are the same book accounts, notes and dues, mentioned in
said articles of agreement, hereinafter mentioned, as having been contracted
on account of said goods, or store in Lima. And also for that, whereas, at the
time of the making of the said articles of agreement hereinafter mentioned,
divers and sundry of the goods, hereinbefore mentioned as having been
furnished and delivered by the said plaintiff to the said defendant, remained
unsold, and were then in the said store at Lima, which said goods so remaining
unsold, as above stated, and the same goods mentioned in the said articles of
agreement hereinafter mentioned, as goods then, to wit: At the time of the
making of the said articles of agreement hereinafter mentioned, on hand, and
the said plaintiff and the said defendant being so situated as hereinbefore
stated, and shown with respect to each other, and with respect to the
aforesaid matters and things heretofore, to wit, on the eighteenth day of
December, 1848, to wit, at the said county of Adams, made and concluded their
certain other articles of agreement of that date, sealed with their seals
respectively, and now to the court here shown, in the words and figures
following, to wit, whereas, that an article of an agreement is now existing
between Ira Stout, of St. Louis, Missouri, and of Edson Whitney, of Adams
county, Illinois concerning the sale of goods in Lima, Illinois, wherein said
Stout has furnished said Whitney, various kinds of goods, and said Stout,
being desirous of selling to said Whitney all the goods now on hand, including
all book accounts, notes and all dues due the concern, of every nature,
contracted on account of said goods or store in Lima, have this day bargained
and sold, and by these presents sell to said Whitney on the following terms,
to wit, the said Whitney is to have the first lot of goods, furnished by said
Stout, out of his former store, near Stimpson's Mill, at cost, after making
reasonable deductions on articles overcharged in bill rendered, and on all
goods laid in and purchased in St. Louis for the said Lima store, the said
Whitney agrees to pay the said Stout the original cost and five per cent on
each dollar so purchased; the said Stout agrees to take in payment of said
goods all kinds of merchantable produce, delivered at Quincy or Warsaw, at the
market prices of said places, where such produce may be delivered as
aforesaid, such as corn, wheat, oats, barley, dried hides, beeswax, bacon,
lard, furs and peltries. The said Stout agrees to furnish a good corn-sheller
and sacks to put grain in, and pay all charges of storage, and whenever any
such articles are delivered and stored, the said Stout agrees to run all
risks, accidents or fall in prices; the price is to be regulated according to
the date delivered, the said Whitney agrees to deliver to the place or places
aforesaid, all such articles of produce aforesaid as he can conveniently on or
before the first day of June next; and on a final settlement of all just dues
and demands now existing between the said Stout and the said Whitney, the said
Stout agrees to give the said Whitney twelve months from the first day of
March next, with six per cent interest on the latter payment; the said Whitney
agrees to pay four promissory notes signed by said Whitney as security for
said Stout, amounting to three hundred and thirty-four dollars and ninety-nine
cents, given on account of judgment rendered in the Circuit Court of Hancock
county, by arbitration, which sum is considered as part payment in
consideration of said goods, said judgment was rendered in favor of Chester
Stimpson, and against said Ira Stout.

"In testimony whereof, the said Ira Stout and Edson Whitney have hereunto set
their hands and seals this eighteenth day of December, A. D. 1848.

"Ira Stout, [Seal.]
"Edson Whitney, [Seal.]
"Attest, Daniel Ketchum."

And the said plaintiff avers, that the cost of the aforesaid first lot of
goods furnished by the said plaintiff to the said defendant out of his, the
said plaintiff's said former store near Stimpson's Mill, amounted to a large
sum of money, to wit, the sum of three thousand dollars, after making
reasonable deductions on articles overcharged in bill rendered; and the said
plaintiff further avers, that the said goods, laid in and purchased in St.
Louis, for the said Lima store, originally cost, in St. Louis, a large sum of
money, to wit, the sum of seven thousand dollars; and that five per cent on
each dollar of the said cost of the same amounted to a large sum of money, to
wit, the sum of three hundred and fifty dollars, and so the said plaintiff
says that the price covenanted to be paid by the said defendant to the said
plaintiff, in and by the said last mentioned articles of agreement, for the
goods, book accounts, notes and dues thereby sold by the said plaintiff to the
said defendant, amounted to a large sum of money, to wit, the sum of ten
thousand three hundred and fifty dollars, to wit, at the county of Adams
aforesaid.

And the said plaintiff, further avers, that the said prices of the said goods,
book accounts, notes and dues, last above mentioned, amounted to a large sum
of money, to wit, the sum of ten thousand dollars, after deducting therefrom
the amount of the said four promissory notes in the last mentioned articles of
agreement mentioned, to wit, at the said county of Adams.

And the said plaintiff avers, that he hath ever been ready and willing to
perform and fulfill, and that he hath well and truly performed and fulfilled
all and singular the covenants and agreements in the said articles of
agreement last hereinbefore mentioned, contained on his part and behalf to be
done and performed according to the effect, true intent and meaning thereof.

Yet the said plaintiff in fact says, that the said defendant hath not paid the
residue of the said price of the said goods, book accounts, notes and dues
sold by the said plaintiff to the said defendant, by the said last mentioned
articles of agreement which remains after deducting from the said price, the
amount of the said four promissory notes; and that he hath not delivered to
the plaintiff, either at said Quincy or Warsaw, any merchantable produce in
payment thereof, although the time for the payment of the same hath long since
elapsed.

And for assigning a further breach in this behalf, the said plaintiff farther
avers, that the said price of the said goods, book accounts, notes and dues,
sold by the said plaintiff to the said defendant, by the said last mentioned
articles of agreement, after deducting therefrom the amount of the said four
promissory notes, in the said last mentioned articles of agreement mentioned,
and all just debts and demands in favor of the said defendant, and against the
said plaintiff, existing at the time of the making of the said last mentioned
articles of agreement, amounted to a largo sum of money, to wit, the sum of
ten thousand dollars. Yet the said plaintiff in fact says, that the said
defendant hath not paid the residue of the said price of the said goods, book
accounts, notes and dues, sold by the said plaintiff to the said defendant, by
the said last mentioned articles of agreement, which remains after deducting
therefrom the amount of the said four promissory notes, in the said last
mentioned articles of agreement mentioned, and all just dues and demands in
favor of the said defendant and against the said plaintiff, existing at the
time of making the said last mentioned articles of agreement, and the said
defendant hath not, since the making of the said last mentioned articles of
agreement, hitherto delivered to the said plaintiff, either at said Quincy or
Warsaw, or elsewhere, any merchantable produce in payment of the said residue,
although the said residue long since became due and payable, to wit, at the
said county of Adams.

And the said plaintiff, for assigning a further breach in this behalf, further
says, that the said defendant, before the making of the said articles of
agreement in the introductory part of this count mentioned, to wit, at the
said county of Adams, was justly indebted to the said plaintiff in the sum of
five hundred dollars, for other goods before that time bargained and sold by
the plaintiff, to the defendant at his request, and for other goods before
that time sold and delivered by the plaintiff, to the defendant at his
request; and for money, by the said plaintiff before that time, lent and
advanced to, and paid, laid out, and expended for the said defendant at his
like request; and for money before that time had and received, by the said
defendant, to and for the use of the said plaintiff, and the said plaintiff
further avers, that the said indebtedness continued and was a just demand from
the said defendant to the said plaintiff, existing at the time of the making
of the said articles of agreement last hereinbefore set out, to wit, at the
said county of Adams. And the said plaintiff further avers, that the said
indebtedness last above mentioned, together with the said price of said goods,
book accounts, notes and dues, sold by the said plaintiff to the said
defendant, by the said last mentioned articles of agreement, after deducting
from the said price the amount of the said four promissory notes, in the said
last mentioned articles of agreement mentioned, amounted to a large sum of
money, to wit, the sum of ten thousand dollars, after deducting therefrom all
just dues and demands in favor of the said defendant and against the said
plaintiff, existing at the time of the making of the said last mentioned
articles of agreement, to wit, at the said county of Adams.

Yet the said plaintiff in fact says, that the said defendant hath not paid the
said residue of the said indebtedness above named, and the said price of the
said goods, book accounts, notes and dues, sold by the said plaintiff to the
said defendant, by the said last mentioned articles of agreement, which
remains after deducting therefrom the amount of the said four promissory
notes, in the said last mentioned articles of agreement mentioned, and all
just dues and demands in favor of the said defendant and against the said
plaintiff, existing at the time of the making of the said last mentioned
articles of agreement, and that the said defendant hath not delivered to the
said plaintiff, either at said Quincy or Warsaw, or elsewhere, any
merchantable produce in payment thereof, although the time for the payment of
the same hath long since elapsed, to wit, at the said county of Adams.

And for a further breath in this behalf, the said plaintiff further avers,
that before the making of the said articles of agreement, the introductory
part of this count mentioned, to wit, on the first day of March, 1848, to wit,
at the said county of Adams, the said defendant was justly indebted to the
said plaintiff in the sum of five hundred dollars for other goods, before that
time, bargained and sold by the said plaintiff to the said defendant at his
request, and for other goods before that time sold and delivered by the said
plaintiff to the said defendant, at his request; and for money by the said
plaintiff, before that time, lent and advanced to, and paid, laid out, and
expended for the said defendant, and at his like request; and for money before
that time had and received to, and for the use of, the said plaintiff; and the
said plaintiff further avers that the said indebtedness last above named,
existed and was a just demand in favor of the said plaintiff and against the
said defendant at the time of the making of the said articles of agreement
last heretofore set out, after deducting all just dues and demands in favor of
the said defendant and against the said plaintiff, existing at the time of the
making of the said last mentioned articles of agreement. Yet the said
plaintiff in fact says, that the said defendant hath not paid the said
indebtedness last above named, as by the said last mentioned articles of
agreement he covenanted to do, although the time for the payment of the same
hath long since elapsed, to wit, at the said county of Adams. And so the said
plaintiff saith that the said defendant hath not kept with him the covenants
so made between them as aforesaid, in the said several counts of this
declaration, but hath broken the same, and to keep the same with the said
plaintiff, the said defendant hath hitherto wholly refused, and still doth
refuse, to the damage of the said plaintiff of ten thousand dollars.

And therefore he sues, etc.

A. Wheat, with whom was Warren & Edmunds, made the following points for the
plaintiff in error:

To constitute a partnership as between the parties themselves, it is necessary
that there should be a community of property, or joint interest in the capital
stock of the business, and a personal responsibility of each party, for the
partnership engagements: 3 Kent's Com., 24; Waugh v. Carroll et al., 2 H.
Blackstone, 246.

The agreement between the parties, of the twentieth of March, 1848, did not
create a partnership: Hosketh v. Blanchard et al., Executors of Blanchard, 4
East., 143; Rice v. Austin, 17 Mass., 197; Bailey v. Clark, 6 Pick., 372;
Heran v. Hall, 1 B. Monroe, 159; Loomis v. Marshall et al., 12 Conn., 69.

But if it did, this action would nevertheless lie: Glover v. Tuck et al., 24
Wend., 158; Lyon v. Malone, 4 Porter, 497; Gibson v. Moore, 6 N. H., 550;
Duncan v. Lyon, 3 John. Ch., 362; Rockwell v. Wilder, 4 Met., 562; Rogers et.
al., Executors, etc., v. Rogers, 1 Hall, 393; Frink et al v. Ryan, 3 Scam.,
322.

The covenant by plaintiff in the agreement of the eighteenth of December,
1848, to furnish sacks and a corn sheller, was not a condition precedent:
Bennett v. Executors of Pixley, 7 John. 249; Tompkins v. Elliott, 5 Wend.,
496; McKee v. Ruth et al., 5 Gil., 315; 1 Ch. Pl., 320, 323. Nor was the
covenant to settle: Frink et al. v. Ryan, 3 Scam., 322; Baits v. Peters, 9
Wheaton, 556. As to averments and assignment of breaches, see Potter v. Bacon,
2 Wend., 583; 1 Ch. Pl., 332, 370, 375, 664; Com. Dig., Pleader C., 45-6.

Browning & Bushnell and Williams & Lawrence, for defendant in error.

Caton, J. With the view we are disposed to take of this case, it is a matter
of no moment whether the parties were partners prior to the execution of the
agreement of the eighteenth of December, 1848, or not. Whatever else may be
said of that agreement, we think it clear that the partnership, admitting that
one had existed, was by that agreement dissolved, and the interest of Stout in
the assets of the concern were transferred to Whitney. That agreement is far
from being skillfully drawn, and objections may be raised to any construction
which may be given to it. This is another of the thousand instances, which are
constantly occurring, where the parties, during a negotiation, probably arrive
at a perfect understanding, and then, when they come to reduce their agreement
to writing, only express some of the leading features of their understanding,
and those only in an imperfect and inconsistent manner, not reflecting that
others ignorant of the detail of the matters about which they are negotiating,
would have difficulty in perceiving what, to their own minds, was perfectly
apparent. In such cases, something must necessarily be intended, but above all
it is indispensably necessary, in order to arrive at their meaning, that we
should place ourselves as far as possible in the position of the parlies when
they made the contract, by possessing ourselves of the circumstances which
they had in their view during the negotiation. When, as in this case, the
construction is to be given to the instrument, as it appears in the
declaration, we must look alone to those circumstances, as there recited or
averred, for assistance in arriving at the meaning of the instrument. If those
circumstances are improperly or imperfectly stated in the declaration, the
other party cannot demur, and then suggest that other circumstances may exist,
which if true, would show that the parties had something else in view, and
meant to express a different meaning from that which would be understood, in
view of the facts stated in the declaration. It is for the defendant to show
the existence of those circumstances, in contemplation of which, the parties
made the contract, and which might serve to show what they meant. Here the
question being raised by a demurrer, the contract must now be construed in the
light presented in this declaration.

According to the declaration, the circumstances in view of, and about which,
this contract was made, are, that in the March previous, the parties had—if
you please—entered into partnership, by the terms of which, the plaintiff was
to furnish a store and a stock of goods, and the defendant was to sell the
goods, and that the profits should be equally divided between them. In
pursuance of that agreement the plaintiff furnished goods, some from his store
near Stimpson's Mills, and others purchased and forwarded from St. Louis. A
portion of these goods had been sold by the defendant, for which, various
notes, book accounts and demands were due the concern, and a remnant of the
goods still remained unsold. Previous to the time when the contract was made,
the, defendant had become security with the plaintiff on certain notes which
were yet unpaid. In view of these circumstances, the contract was made. And
now, what was the character of that contract, and what its object? Beyond all
doubt, it was a contract of bargain and sale; and if we can ascertain what was
intended to be sold, what the measure of compensation, and how payment was to
be made, we shall then have arrived at the intention of the parties.

This contract, in its recital, after alluding to the existence of the original
agreement, states that Stout had furnished to Whitney various kinds of goods,
and that Stout was "desirous of selling to Whitney all the goods now on hand
including all book accounts, notes, and all dues due the concern, of every
nature and character, account of said goods or store in Lima; have this day
bargained and sold, and do by these presents sell to said Whitney on the
following terms, to wit, etc." Now what was sold, the granting part of the
contract does not state, and yet we cannot doubt that Stout intended to sell
what is attempted to be described in the previous recital. In that recital it
is manifest that the parties did not understand the value and meaning of some
of the words used, and but for the explanation which they have given, we
should never have thought that the parties understood that the word "goods"
included choses in action. This very sentence shows how unsafe it would be to
adhere to the literal meaning of the words of the contract, in order to
ascertain the intentions of the parties, when it is manifest they did not
understand the true value of the words they used. We must as far as possible,
make the parties their own interpreters, and allow one part of the contract to
explain another part, as far as possible. Here, by the subsequent words, we
see the parties have attempted to explain what they meant by the use of the
word "goods," and yet I think it subsequently appears that they were equally
ignorant of the meaning of the words used in explanation. It was doubtless the
intention of the parties to express in this recital the subject matter of the
sale, but they have failed in doing so. I am of opinion that they intended to
embrace in this sale not only all of Stout's present interest in all of the
assets of the concern, but also all interest which he ever had in the goods or
their proceeds. That they intended to place themselves and their relative
rights and liabilities in precisely the same condition that they then would
have been in, had no partnership or mutual interests ever existed. That they
intended to occupy the same position which they would have occupied, had
Whitney originally purchased the goods of Stout. That they intended by the new
contract to supersede the partnership arrangement—to set aside all that had
been done under it, and to create new rights and liabilities, precisely of the
character which would then have existed, had a contract of sale been made of
the goods at the time they were delivered, with the amount to be paid for
them, and mode of payment, precisely as is stipulated in this contract. This,
I think, is manifest from what immediately succeeds the part above quoted,
which is as follows: "The said Whitney is to have the first lot of goods
furnished by said Stout out of his former store near Stimpson's Mill, at cost,
after making reasonable deduction on articles overcharged in bill rendered;
and on all goods laid in and purchased in St. Louis for said Lima store. And
said Whitney agrees to pay said Stout the original cost, and five per cent on
each dollar so purchased." Now, this, while it serves to fix the measure of
compensation to be paid for the purchase, also serves to show more
satisfactorily than any other part of the contract, the nature of the
transaction, and the character and extent of the sale. They say Whitney is to
have the first lot of goods furnished from Stout's store, on certain terms,
and the goods purchased in St. Louis on certain other terms. It is true that
he could not presently have those goods, for he had already had those goods,
many of them had been disposed of, but still the mode of expression is not
very inacurate and certainly not very uncommon, for the purpose of changing
the terms of a transaction, which had originally been settled upon
differently, or for the purpose of fixing the terms of a transaction which had
not previously been defined. Thus if one party furnishes goods to another,
either with or without specified terms, when they subsequently come to
negotiate and settle, nothing is more common than for the party to say, you
shall have the first lot of goods on such terms, or for so much less than I
agreed to take, and the second lot, for which no price was fixed, you shall
have for so much. In the first instance, if the proposition were agreed to, it
would supersede the original contract and create new rights and liabilities,
growing out of the original transaction, precisely as was done in this case,
and those rights and liabilities would be determined precisely as if no
original contract had ever been made, and would depend entirely upon the new
agreement. Such must have been the intention of the parties here. The whole
agreement must be taken together, in order to arrive at the intention of the
parties. The expressions of one part must be taken in connect ion with those
of another.

Then follows a provision in relation to the mode of payment, which, as no
question is raised upon it, need not be particularly examined. A difficulty
was, however, suggested, growing out, of a subsequent clause providing for a
postponement of a part of the payment. It is this, "and on a final settlement
of all just dues and demands now existing between the said Stout and the said
Whitney, the said Stout agrees to give the said Whitney twelve months from the
first day of March next, with six per cent interest on the latter payment." It
is true, as was urged, that this contemplates a future settlement, but it does
not follow that that was to be a settlement of the partnership transactions,
as they had originally existed. It does not follow, because the parties did
not account together and strike a balance, that, they did not dissolve the
partnership in such a way as to supersede the necessity of taking an account
of the profits and losses of the concern. The manifest object of the agreement
was to avoid the necessity of such an accounting and to establish a new basis
upon which their transactions were to be settled. Upon the basis thus
established, a court of law is perfectly competent to determine the rights of
the parties; as much so as if there had never been a community of interest in
the business. The expression, "all just dues and demands," is broad enough to
include individual dealings, if any such had previously existed, as well as
the rights created by the contract, and growing out of their mutual dealings.
It is unnecessary to inquire what was meant by "the latter payment," because
the twelve months had expired before this action was commenced.

Following the clause last quoted, is the provision that Whitney should pay the
three notes, on which he was security for Stout, and then it is provided as
follows: "Which sum is considered as part payment in consideration of said
goods." This provision is in harmony with the view already expressed, that it
was the intention of the parties to make Whitney occupy the position of an
original purchaser of the goods.

It is to no purpose to suggest that Whitney may have remitted to Stout, a part
of the proceeds of the goods sold, and then object that no provision is made
for such a state of case. No such fact is shown to exist. If it did, and that
would in any wise vary the construction of the instruments, it is for the
party claiming a benefit from it to show it. But if such remittances were
shown, we do not think it would change our construction of the contract. If we
are correct in the view that it was the intention of the parties to make
Whitney occupy the position of an original purchaser of the goods, and that
the rights and liabilities of the parties are to be determined upon that
basis, then, of course, Whitney would have to be credited with such
remittances as so much purchase money paid.

Although the construction which we give to the contract may perhaps differ
somewhat from that given in the first, second and fourth counts of the
declaration, yet the difference is not of such a character as to affect the
validity of the declaration. Objections were made to some of the assignments
of breaches, but as the demurrers are to each count entire, if there is one
good assignment in the count, the demurrer must be overruled. It may be proper
to refer to one of the assignments, to which particular objection was made. In
that assignment, it is stated that the defendant was, previous to the
formation of the partnership, indebted to the plaintiff for goods sold, money
lent, etc., which he had refused to pay, as by the covenant, he had agreed to
do. This, we think, is a misapprehension of the covenant. The only clause of
the contract, upon which any reliance can be placed to support this
assignment, is the one last quoted. That clause, however, does not obligate
the defendant to pay those old debts, but it postpones the right of the
plaintiff to demand the payment of those demands till March, 1850. It was
inserted for the benefit of the defendant, and not of the plaintiff.

The third count was abandoned on the argument, and it is unnecessary to
examine it. To the other three counts the demurrer was improperly overruled.

The judgment is reversed, and the cause remanded, with leave to the defendant
to plead to the merits.

Judgment reversed.

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(a) In the construction of written contracts, the intention of the parties as
expressed by their words will govern: Tracy v. Chicago, 24 Ill., 500; Crabtree
v. Hagenbaugh, 25, Ill., 233. In arriving at such intention, the court will
examine the situation and circumstances of the parties, the character,
condition and circumstances of the property, or interests, about which they
contract, and, when proper, the negotiations which led to the making of the
contract: Coffing v. Taylor, 16 Ill., 457, and cases cited; Boskowitz v.
Baker, 74 Ill., 264; Robinson v. Stow, Admr., el al., 39 Ill., 568 (annotated
edition), and notes.

(b) See Gov. of Illinois v. Ridgway, ante 14, and note (a).

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill.
1881.

 

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