Stainbrook v. Duncan

Hr. Justice Barker. Appellant seeks a reversal of the judgment against him because, fjrst, the court erred in proceeding to try the cause without first taking a default against Marshall & Patrick; second, the verdict is against the evidence; third, the court erred in allowing plaintiff’s motion to remit; and fourth, the court incorrectly instructed the jury. "While it is the proper practice to default such of several defendants as have been served and do not plead, and have the jury sivorn to try the issues made up between the plaintiff and such defendants as do plead, yet we are of the opinion that the irregularity occurring in that regard in this case, was cured by the motion and order to dismiss as to Marshall & Patrick. This was an action for tort. It was not necessary to sue all or recover against all. The plaintiff had the statutory right to dismiss as to Marshall & Patrick at any time before final judgment. We are unable to see how Stainbrook was in the least prejudiced by the action of the plaintiff in not defaulting the other defendants. The evidence shows that in 1885 appellee loaned his brother, George W. Duncan, $750; that during the same year he entered the service of his brother as a clerk in his store at a stipulated price of $25 per month and his board, "working on those terms for four years; that his salary was then raised to $450 per year, at which it remained for a period of two years; that having other means to meet his personal expenses he drew none of his salary and received from his brother none of the $750 loaned; that as security for the money loaned it was agreed that the bank account of George W. should be run in appellee’s name; that in the spring of 1891 a settlement was had between them, when it was found that his brother owed him $3,000, for which sum a judgment note was executed and delivered to appellee. It also appears that appellee, being unable to obtain payment from his brother, had judgment entered upon the note, execution issued and the same levied upon the stock of goods. When the sheriff began to make an inventory, George W. executed a bill of sale, under which the goods were turned over to appellee, and the execution was returned satisfied. Appellee then began to sell the goods at retail and continued to do so until the levy of the attachment writ sued out by Marshall & Patrick. It is insisted by appellant that these two brothers deliberately planned a scheme for George W. Duncan to obtain a large stock of goods on credit and then sell out to appellee; that George W. did not owe the money claimed to be due when the §3,000 note was executed, and that their conduct shows a cunningly contrived purpose to defraud creditors. The evidence as to the indebtedness between the two brothers was confined almost entirely to the testimony of appellee. His statements Avere reasonable and lead us to the conclusion that the $3,000 note represented actual indebtedness. We see no eAddence of bad faith on his part. It does not appear that any step Avas taken by him not allowable to a creditor seeking the security and collection of his debt. He had the right to take the entire stock of goods in satisfaction of his debt, although he knew that by so doing his brother would be left with no property out of which other creditors could satisfy their debts. Whatever may be the rule elseAvhere, it is the well settled laAV of this State that a debtor may prefer one creditor to all others, and it makes no difference what was his intent in disposing of his goods if the preferred creditor was innocent, and took the goods at a fair price and for the sole purpose of collecting his debt. Hessing v. McCloskey, 37 Ill. 353; Hatch v. Jordan, 74 Ill. 414; Schroeder v. Welch, 120 Ill. 404. Appellee’s second and third instructions, the only ones complained of by appellant, are in harmony with the above cited authorities, and in vieAV of the evidence were properly given to the jury. The practice of alloAving a plaintiff to remit a part of the verdict is so firmly established, that we deem it unnecessary to discuss appellant’s contention that “ the court erred in allowing the plaintiff’s motion to remit.” The practice prevails in actions ex delicto as well as in actions ex contractu. Albin v. Kinney, 96 Ill. 214; Union Rolling Mill Co. v. Gillen, 100 Ill. 52. Perceiving no error in the record, the judgment will be affirmed. Jlodgment affirmed.