Bryan v. Dyer

Rreese, J". We think this case too plain for much argument. It was an action of assumpsit, brought on the following agreement: “We, the undersigned owners of real estate, situate in the vicinity of the corner of Monroe and Dearborn streets, where the buildings of the United States are proposed to be located for a post office, custom house, and United States court room, do hereby promise and agree, for a valuable- consideration to us in hand paid, to pay Chas. Y. Dyer, in the event the Government of the United States shall locate and erect the said buildings on said grounds, but not otherwise, the sums set opposite our respective names, as by us severally subscribed. Dated Chicago, January 5, 1855. F. A. Bryan,.....$500.00 John Sollitt,...... 200.00 Jacob Harris,...... 50.00” The defendant pleaded the general issue, and gave notice under it that he would show the agreement was entered into without any consideration, and that the contract was illegal and void—that nothing was paid by plaintiff to defendant for signing the writing, and that the contract was made and entered into by the defendant upon the sole consideration, that the plaintiff promised to use his influence with the Government of the United States to cause it to locate certain government buildings upon the corner of Monroe and Dearborn streets in the city of Chicago, and that the promise to use his influence with the Government in causing the buildings to be located at said place, was the sole and only consideration made to defendant for his signing the contract, and none other; and also gave notice of a set-off for goods, wares, and merchandise, sold and delivered by the defendant to the plaintiff. At the trial, when the agreement was offered in evidence, it was objected to by the defendant on the ground that it showed upon its face that the consideration of the promise was illegal and void; and, further, that it appeared there was a material erasure of an indorsement on it, which the defendant insisted should be explained before it could be read to the jul7- These objections were overruled, the paper read, evidence heard, and a verdict rendered for the plaintiff, and damages assessed at two hundred and thirty-four dollars and sixty-eight cents. The proof shows that the Government decided to locate the buildings at the corner of Monroe and Dearborn streets, some months before the agreement was signed by the defendant, namely, November 29, 1851, and that they were completed, located and enclosed, before the commencement of this suit. It also shows that defendant owned property near where the building was located, and the testimony of Huntington fully discloses the interest the defendant had that the buildings should not only be proposed to be located at the point desired, but that they should be in fact erected and completed. It also shows the expense and trouble the plaintiff had to undergo, to remove even the slightest objections the Government urged to the title to the property, after the location was agreed upon. It shows also that the plaintiff had become nearly discouraged by the objections thus set up, and thought of abandoning the project, the title being guaranteed by the plaintiff. In this emergency, the contract was made with the defendant and others, who said he was willing to pay his share with Sollitt and others, to further the object, and expressed his desire to pay his portion of the expenses, to have the buildings located at the designated point. It also shows that the plaintiff was compelled to make a journey to Washington city to clear up supposed objections to his title—also to visit the legislature of the State to procure the enactment of a law ceding the jurisdiction to the General Government. It shows also payments of large sums of money in buying up supposed conflicting titles, and in getting tenants to yield possession, all which was done after the Government had located the buildings. It was in view of all these matters, that the defendant made the promise. We see nothing illegal in this promise, or a want of consideration. The defendant was interested that the building should be erected at the place where the Government proposed to locate it, and he agreed to pay his share towards the removal of the difficulties attending the subject, after the location had been determined on, so that the building might be carried out to completion, whereby his property would be greatly enhanced in value. He felt, like other property holders in that vicinity, that it was hardly just that the plaintiff should be at the trouble and expense and money outlays to accomplish an object desired by all, and mutually beneficial. There is not one particle of proof to show that any part of the consideration for this promise was, that plaintiff should use his influence with the Government to cause this building to be located at any place. The building was located before the promise was made. The issues tendered by the defendant are not made out in a single particular. The objection to reading the letter of the Secretary of the Treasury, of November 29, 1854, was not a good objection as stated in the record. The objection as it there appears was because the letter showed that the building was located before the date of the contract declared on. This was no objection, for that was not the gist of the action, or in issue. If the proper objection had been made, the letter would no doubt have been excluded. It being a paper which did not prove itself, proof of the handwriting of the secretary might have been demanded and insisted upon. The first three instructions asked by the defendant were given though they might well have been refused, as not a particle of proof was offered to justify them or either of them, nor a circumstance developed to justify such an inference. The fourth instruction was properly refused, as it is not against law for persons to combine to procure the establishment of a public building or other work in a particular locality to the exclusion of other points, provided neither bribery nor other undue means are used to accomplish the object. It is not contrary to public policy, nor illegal. It should have been refused for another reason: there is nothing proved in the case on which to hang it, and the jury was not asked to believe it from the evidence, but to act on their own crude notions or imperfect knowledge of a supposed fact, or state of facts. The fifth instruction was properly modified, and was correct as given, with the exception that there should have been no reference to the first, second and third instructions given for the defendant, but as that was for the benefit of defendant, he cannot complain. The issue was such a consideration as stated in the notice, and no other, and although the agreement expressed on its face, to be for a valuable consideration, the defendant had the right, under our statute, to show it was given without, consideration, or for an illegal consideration, neither of which did he succeed in doing. As to the erasure of au indorsement on the writing, we cannot think it should vitiate the whole instrument. The most the party could demand would be, that he should be restored to the benefit of the indorsement as it was originally made. This was done by the jury. The defendant received a credit for the amount indorsed and erased, and which, judging from the figures, was the amount of his bill for goods, loans, and merchandise sold and delivered. The indorsement has no more validity or effect than a receipt, and if expunged, the debtor would still have the benefit of it, if he could establish the contents; and if he could not positively show the precise contents, there is a natural presumption, not .to he repressed, of which the jury will always feel the influence in making up the verdict. To say, then, the obliteration of an indorsement of a payment on the note makes void the note, is to say that the destruction of a receipt for such a payment has the same effect, which is preposterous. The judgment is affirmed. Judgment affirmed.