Keiser v. Jarrett

Mr. Presiding Justice Baker delivered the opinion of the court. There is in the record not, only no evidence tending to show that there was any overcharge or short weight as to any of the coal remaining unpaid for August 2, 1902, when the instrument sued on was executed, but the receipted bills put in evidence by the defendant and the bill produced by the defendant at the time the instrument of August 2, 1902, was executed which was put in evidence by the plaintiff in rebuttal, clearly show that the coal which remained unpaid for August 2, 1902, was delivered during and after February of that year, long after the witness Whitehead left the service of Kaehler. It' was that coal that formed the consideration for the promise of the defendant to pay plaintiff’s intestate $268.19, contained in the instrument sued on. The coal delivered in 1901 had been paid for and could therefore form no part of the consideration for that promise. As has been said, there is no evidence that Kaehler delivered after 1901 less than two thousand pounds of coal for any ton of coal purchased of him by the defendant. The case of Douthart v. Congdon, 197 Ill. 349, and other cases which hold that where one entire promise is made on one entire consideration and part of that consideration is illegal, no recovery can be had on the promise, have no application to the facts of this case. The sales of coal were separate and independent transactions. To constitute a defense to the promise contained in the instrument sued on, it must be shown that one or more of the sales of the coal which entered into and formed a part of the consideration for that promise were illegal. Proof that certain sales made in 1901 were illegal would not invalidate legal sales made in 1902. Robinson v. Greene, 3 Met. 159; Frohlich v. Alexander, 36 Ill. App. 428. The judgment upon the- evidence is clearly proper and we do not deem it necessary to consider the errors in procedure assigned. The judgment of the Circuit Court will be affirmed. Affirmed.