Downing v. Plate

Mr. Justice Dicicey delivered the opinion of the Court: The first objection made to this decree is, that the tender made before the filing, of the bill was of only $1500, and the court found the amount due to be $3300, and it is insisted that for this reason complainant is not entitled to the relief granted. It is undoubtedly true, that where the balance of the purchase money can be ascertained, the complainant is not entitled to a conveyance without an offer, on his part, of the purchase money'; and it is true that in such case the offer should be made before the bill is filed, but in this case the evidence of the payments which were indorsed upon the back of the original contract was destroyed by the wrongful act of the defendant himself, in burning the contract, Avith the indorsements thereon. Where the court is satisfied that the party complainant, under such circumstances, has tendered or offered Avhat he believed to be the true amount, and where he offers to pay whatever amount the court may find to be due, a party is not to be turned out of court because he Avas unable to tender the exact amount before the bill was filed. In Hull v. Peer et al. 27 Ill. 319, this court, in a case not unlike the one at bar, in this respect, said: “In a case AA'here the true balance is uncertain, and can only be ascertained by the adjudication of the court, upon testimony to be taken, the pleader may state the case most favorably to himself and then comply with the decree, if it is less favorable than Avas his claim.” Had the defendant, on coming into court, come forward with an ansAver, saying that the amount of unpaid purchase money was $3300, and offered to make a deed upon the payment of that sum, and had the complainant refused to pay this amount, and had he persisted in his litigation, claiming the amount to be less, .undoubtedly the court should not have subjected the defendant to the costs of such litigation. But in this case, the defendant in his answer claimed that there Avas between $8000 and $9000 still due of unpaid purchase money, and in his answer denied the right of complainant to any relief whatever. The second point made by counsel for appellant is, that the wife of complainant was permitted to testify in relation to matters other “ than matters of business transactions where the transaction was had or conducted by her as the agent of her husband.” Upon a careful examination of the testimony given by the wife in this case it is not found that any material testimony given by her did not relate to the subject matter of her agency for her husband in the transaction of this business. It is insisted by appellant that the finding of the court, as to the amount which had been paid and indorsed upon the contract, and also the finding as to the amount of the purchase money (principal and interest) which remained due and unpaid, were both contrary to the weight of the evidence. After a careful examination of the evidence we think that the findings are fully sustained. From the proofs the circuit court was fully warranted in finding that the destruction by the defendant of the written evidence of payments contained in indorsements upon the original contract, was wrongful, if not fraudulent. In such case every reasonable presumption as to that subject matter is to prevail against the wrong-doer. Appellant himself testifies that soon after the papers were signed at the office of the justice of the peace, and before the parties separated, Plate and his wife, learning that they had received a lease and not a deed, were much dissatisfied; that an excited discussion of the matter ensued, in which Plate and his wife insisted that they should, at least, have another contract like the .one which had- been burned. In that conversation, Downing testifies, Mrs. Plate asked him if he would give a deed if they would pay him $3000, and Downing swears that he then told her that he would. Having himself destroyed the only written evidence which existed in relation to the amount of the payments which were made prior to December, 1873, the court was fully warranted in inferring that no more than $3000 of the purchase money remained unpaid on the 29th of January, 1876, from the fact that) at that time, Downing offered to make the deed to the appellee upon the payment of that amount. The finding of the court, as to the amount due at the time of the rendering of the decree, does not vary materially from the amount which he offered to take in January, 1876, with interest added upon that sum for the time intervening before the date of the decree. The testimony of the complainant tended to show that the amount of unpaid purchase money, principal and interest, was less than the sum found by the court. Appellant has no ground to complain of this finding. Again, it is insisted that the court erred in refusing to permit the complainant to testify as to the amount of the payments which were made prior to December 1, 1873, being the payments which were credited upon the contract which appellant destroyed. Without determining the question as to the competency of the testimony offered, it is sufficient for the determination of this case to say that no testimony from the mouth of complainant, as to the amount of these payments, should have been allowed by the court, under the circumstances, to have controlled evidence which had already been given, showing the amounts which had been indorsed upon that contract. If he had sworn that there were no payments made and no indorsements made, or that the amount so paid and indorsed was any given amount less than the amount whieh was sworn to by complainant as having been made, and by his wife as being contained in the indorsements, this testimony should not have been allowed to control, for the rule on that question is, that where a party has wrongfully destroyed the only written evidence of the fact ivhich is in existence, his unsupported evidence, as to the contents of that writing, shall not be allowed to prevail against the testimony of any other witness,—for the presumption is, that the paper, if it could be produced, would corroborate the other witness. After a careful examination of the whole record, we find no ground to disturb the decree. The decree is affirmed. Decree affirmed.