White v. Merrell

Mr. Justice Walker delivered the opinion of the Court: This was an action of assumpsit commenced in Marion and transferred to Jefferson county by change of venue. The declaration only contained the common money counts. On the trial below, the plaintiff read in evidence, against the objections of the defendant, these instruments: “Received, Salem, Marion county, Illinois, April 20th, Minerva Merrell, the sum of three hundred dollars, to be credited on the mortgage notes of R. C. Merrell, and if not redeemed, the above amount is not to be repaid to claimants of said estate. April 20th, 1861. “WILLIAM WHITE.” “ $135.00. Received, Salem, Hlinois, of Mrs. Minerva Merrell, the sum of one hundred and thirty-five dollars, to be credited upon the notes of R. C. Merrell, given for the mortgage property of part of lot one, in block one, in Salem, which money is not to be repaid to any claimant in case the said property is not redeemed. Salem, Marion county, Illinois, May 2Yth, 1861. “WILLIAM WHITE.” And called witnesses to prove the objects for which they were given, as well as the agreement of the .parties upon which the money was paid. It appears from the evidence, that the money specified in these receipts was never credited upon the notes referred to in those instruments; that the mortgage had been foreclosed for the full amount of the debt, and that the premises had been sold and purchased in satisfaction of the decree, by appellant; the redemption had expired, and appellee had surrendered possession to appellant. Appellant likewise proved that the notes referred to were given to appellant by the husband of appellee, in his lifetime, and to secure which he had executed a mortgage. That appellee being anxious to secure the property, undertook to redeem it, and it was agreed that if she should pay one thousand dollars by the time the last note matured, and one thousand dollars yearly thereafter, until the debt should be paid, she should then obtain the title to the mortgaged premises. That the money she might thus pay should not be credited upon the notes, or in any manner inure to the benefit of Atkins’ wife, or any other claimant who might redeem. That in case the property should be redeemed by such claimants, the money paid under this agreement was to be refunded. That.if she failed to complete the payment of the first thousand dollars when the notes matured; she was to be permitted to do so before a foreclosure and sale of the property. If paid by that time, the certificate of purchase was to inure to her benefit; but if she failed to pay by that time, the contract was to be at an end, and the money repaid to her. It is insisted that the instruments introduced in evidence are not of the character that admit of explanation by parol evidence ; that if they were merely receipts, such evidence would be admissible, but that these are something more than receipts; that they are written contracts. If this be true, so far as they operate as agreements, they cannot be explained, contradicted or varied. .But we do not perceive that they are agreements. They acknowledge the receipt of specific sums of money, to be credited on certain “mortgage notes,” which, if not redeemed, is not to be paid to claimants against the estate of appellee’s husband. This is not a contract, as it relates to the performance' of no act by the parties. They .only, in addition to acknowledging the receipt of the money, specify that it shall not be applied to the benefit of a particular class of individuals. This only limited the application of the money. These instruments are not distinguishable from ordinary receipts for money. Independent of this money, and out of the mortgaged property, appellant has received satisfaction of his debt against the deceased husband of appellee. He had not allowed these sums as payments upon the mortgage debt. In these receipts he states that the money is.to be credited on the mortgage debt, but, failing so to do, we are at a loss to perceive upon what principle of law or justice he can claim this money. He has given no consideration for it, but, if permitted to retain it, he to that extent would be twice paid. Independent of all extraneous evidence as to the agreement of the parlies, upon its being shown that it was not credited upon the mortgage debt, the law would imply a promise for its repayment. But when the verbal evidence is considered,fit appears that there was an express promise. Again, had appellee desired to redeem the property from the sale under the decree of foreclosure, she would have been compelled to pay a much larger sum than if the credit had been given. This made such a proceeding more onerous, and may have defeated the object in paying this money. It was paid to procure the title' to this property. But in no event can appellant be held to be entitled to retain this money. Hpon the whole record we are unable to perceive any error, and the judgment is affirmed. Judgment affirmed.