Pierce v. Brewster

Mr. Chief Justice Catch delivered the opinion of the Court: The question in this case is embraced within a very small compass, and is readily determined by the application of familiar principles of law and practical common sense. The assignment, as originally executed, authorized the assignees to sell the assigned property on a credit. This clause, as we held in Bowen v. Burkhurst, 24 Ill. 257, gave the assignees too extended a power, which might be used to the prejudice and delay of creditors, and therefore vitiated the assignment. Before the complainants obtained their judgment against the assignor, a subsequent agreement was executed between the assignor and the assignees, by which this obnoxious clause was abrogated, and the power to sell on a credit was annulled. This instrument was supplemental to, and from that moment became a part of the instrument of assignment, and had the same influence upon it as if it had been originally inserted in it. From that moment it was purged of this fraudulent feature. It, in fact, became a new instrument of assignment. Its legal effect was precisely the same as if the assignees had reassigned the property to the assignor, who had then executed a new assignment in the same words of the old, only omitting the objectionable clause, which was by the new instrument abrogated, and practically expunged from the contract. Had there been such reassignment, and then a new assignment, omitting the power to sell on a credit, it is not denied that it would have been valid. The practical result and legal effect are precisely the same now. We agree with the Circuit Court, that the assignment was now good, and must be upheld. The decree is affirmed. Decree affirmed.