Herbert v. Mueller

Mr. Justice Adams delivered the opinion of the court. The claim of appellee, plaintiffin the trial court, is based solely on his evidence that appellant promised that if he, appellee, would not attach or replevy the cigars, “ she would see that he was paid.” There is no evidence tending in the least to cast suspicion on the dealings between appellant and her husband; her loan to him of the money to purchase the saloon and stock, his purchase of the same in his own name with the money so loaned, his running in debt in the saloon business, and his bill of sale of the saloon and stock to appellant. Appellant having loaned money to her husband, her position in regard to him, as his creditor, was precisely the same in law as would have been that of any other creditor under the same or similar circumstances. Rudershausen v. Atwood, 19 Ill. App. 58, and cases cited. Appellee does not claim that he sold the cigars on appellant’s credit, or that he had any dealings whatever with her. His language is, that he was in the cigar business; that he had been dealing with Martin B. Herbert for about two years, selling his cigars; that Martin B. Herbert ran a saloon at Ho. 221 Lincoln avenue, and that in the early part of the year 1893, he owed plaintiff $60 for cigars - that had been sold and delivered to him. Appellee was the sole witness as to- the alleged promise of appellant. She expressly denied that she made any such promise, or that she had any conversation with appellee about attachment, replevin, or any kind of lawsuit. She and her husband both testified that on the trial before the justice, appellee appeared as a witness, and did not testify or claim that appellant promised to pay, or see paid, her husband’s debt, if appellee would not attach or replevy. Assuming this to be true, it is strongly corroborative of appellant’s testimony that she did not so promise. If appellee testified before the justice that appellant so promised, this might have been easily proved, but appellee neither produced witnesses to prove it, nor did he himself testify, as he had- ample opportunity to do, that he so testified before the justice. "We are of opinion that the preponderance of the evidence was against appellee on the question of fact, viz., whether appellant promised as appellee claimed. But even though she did so promise, appellee can not recover. Appellee’s testimony is that appellant came in and he told her of his intention to attach or replevy if he was not paid, and that she told him “ to leave the cigars and she would see that he was paid.” Assuming that this was an express promise of appellant to pay, which, to say the least, is doubtful, it was not in writing, and being a promise to pay the debt of another, a consideration was necessary to its validity. Appellee’s counsel contend that, as between the parties, it was a compromise of a doubtful right, and this was a consideration sufficient to support the promise. But appellee claimed no right as against appellant. His claim was against her husband, and the question whether he could lawfully attach or replevy her property for her husband’s debt was not at all doubtful. On the contrary, it was clear that he could not. “ An agreement to forbear, for a time, proceedings at law or in equity, to enforce a well-founded claim, is a valid consideration for a promise. But this consideration fails if it be shown that the claim is wholly and certainly unsustainable at law or in equity,” etc. 1 Pars. on Cont. (6th Ed.), 440-444; Heaps v. Dunham, 95 Ill. 583, citing 1 Chitty on Contracts, 35; Vehon v. Vehon, 70 Ill. App. 41. We think it clear from the evidence that neither attachment nor replevin of any part of appellant’s stock, for appellee’s claim against her husband, could have been sustained. The judgment will be reversed.