Treat v. Snydecker, Fyffe & Co.

Mr. Presiding Justice Barker delivered the opinion of the court. This is an appeal- from a judgment of $141.66 rendered by the Circuit Court in a trial where a jury had been waived. The suit was upon a promissory note executed by appellant to appellees and was defended upon the ground of payment, and that the consideration for the note was for losses and gambling in option deals in wheat on the Chicago Board of Trade. The note was one of two executed by appellant, aggregating $550. That they were executed to cover losses in an option wheat deal on the Chicago Board of Trade, we entertain no doubt after having carefully examined the evidence in the record. One of these notes was paid; the one sued on was partly paid and appellant made repeated promises to pay the balance. The court held as the law, in the decision of the case, that if appellant had made payments upon'the note and had promised to pay the balance of the note, he was thereby estopped from claiming that the note was given in consideration of settlement of a gambling contract in option. This, in our opinion, is not the law. If the contract was an illegal one and one against public policy, its mere recognition by appellant in a promise to pay it before suit was brought, would not relieve it from its illegality, or estop him from urging that as a defense. Appellant was induced to enter into the deal by an agent of appellees named Clark. Clark made settlement with appellant, and in behalf of his principals received the two notes. Appellant offered to prove what was said by Clark at the time, but the court held it inadmissible. We think the court erred in this, because we regard it as a part of the res gestee. For the errors indicated the judgment will be reversed and the cause remanded.