Goodwin v. Fox

delivered the opinion of the court.

On- the 20th of February, 1869, a written agreement was executed by Samuel H. Fox and I. "Willard Fox, to which was appended a memorandum signed by Samuel H. Fox, the papers being as follows :

■ “ Whereas I. Willard Fox is indebted to Samuel H. Fox and Henry W. Fox,'partners doing business under the firm name and style' of Fox & Co., in the sum of seventy thousand dollars, ($70,000,) over and above all discounts and set-offs of every name and nature; and whereas said Fox & Co., at the request .of said I. Willard Fox, have taken up and satisfied, or [are]

about to take up and satisfy, certain other of the indebtedness of said I. Willard Fox, some of such indebtedness, and to the amount of about sixteen thousand dollars, ($16,000,) more or less, being satisfied by payment thereof,, and to the amount of about thirty thousand dollars, ($30,000,) more or less, being so satisfied by payment at the rate of fifty cents on the dollar, whereby the said I. Willard Fox has become further indebted' to said Fox & Co.; and whereas the said I. Willard Fox has sold and conveyed to the said Samuel H. Fox all and singular the stock of goods, wares and merchandise with the store fixtures, in the city of Chicago, including therewith his notes, books and accounts of every name, nature and description, and also the premises known as No. 376 North La Salle Street, being lot two (2) in block twenty (20), in Bushnell’s Addition to Chicago, Illinois, in said city of Chicago, with power forthwith, at such times and in such manner as he, said Samuel II. Fox, shall deem best, to sell and collect ancj «convert the said goods, wares, merchandise, fixtures, notes, accounts and premises into money, ánd apply the proceeds to the payment of said indebtedness to said Fox & Co., both said original indebtedness and that so taken up by them, at the rate paid therefor, with such interest added thereto as the said Samuel H. Fox or' Fox. & Co. shall have to pay thereon, or on any portion thereof, and has also conveyed to said Samuel H. Fox his farm in-Lake County, Illinois, known as the Lake Zurich farm: Now, therefore, the said Samuel II. Fox agrees, that if- the said I. Willard Fox shall and will, within six months from the date hereof, pay the entire amount of each name and kind of said indebtedness, or-such portion thereof as remains at that time' unpaid, then he, said Samuel H. Fox, shall and will recorivey the said Lake Zurich farm to said I. Willard Fox, but in- default of such payment it is hereby agreed by the parties hereto that the said Samuel II. Fox may immediately foreclose' the certain mortgage comprised in said conveyance of said Lake Zurich farm and this agreement.

“And the said I. Willard Fox hereby agrees, that, in case proceedings for such foreclosure be commenced, that he will interpose no defence thereto, nor attempt, by injunction, bill in equity, o.- in any other way, to hinder or defeat the same.

“ Witness tbe hands and seals of the said Samuel H. Fox and I. Willard Fox, this twentieth day of February, a.d. 1869.

“ Samuel H. Fox. [seal.]

“I. WlLLARD FOX. ’ [SEAL.]

“ And the said Samuel H. Fox hereby agrees to release a certain mortgage which he has on a portion of said Lake Zurich fai’m, the indebtedness secured by said mortgage having become merged in said debt of seventy thousand dollars.

“ Samuel H. Fox.”

By deeds in fee simple, I. Willard Fox’and his wife conveyed to Samuel H. Fox the North La Salle Street lot and the Lake Zurich farm, mentioned in the above agreement, simultaneously with its execution.

On the 11th of February, 1871, Kate W. Fox brought a suit in -equity, in the Circuit Court of tbe United States for the Northern District of Illinois, against I. Willard Fox and his wife.- Kate W. Fox was the widow of Henry W. Fox, who, with Samuel H. Fox, composed the firm of Fox & Co. Henry W. Fox had died in 1816, and by his will Kate W..Fox was made his sole executrix and sole devisee. In her bill she* set forth the contents of'the above agreement, without stating that it was in writing. The bill averred that, in pursuance of the agreement, Fox & Co. paid the $16,000 and the $30,000 of the indebtedness of I. Willard Fox, named in' it '; that I. Willard Fox and his wife executed and delivered to Samuel H. Fox deeds in fee simple of the Lake Zurich farm and the. La Salle Street lot; and that I. Willard Fox assigned to Samuel H. Fox the goods, wares and merchandise, store fixtures, notes "and accounts, mentioned in the agreement.

The bill also alleged that it was then further agreed between I. Willard Fox and Fox & Co., that the former should carry on his business, which was at Chicago, Illinois, in connection with the said stock of goods, wares and merchandise, notes and accounts, as though no such assignment thereof had been made to Samuel H. Fox ; that Fox & Co., who were manufacturers of glass, in the State of New York, should advance and

The bill further averred, that, in pursuance of the last-mentioned agreement, I. Willard Fox continued to carry on his business until about February 20, 1870, that is, for about one year, in connection with the said stock of goods, store fixtures, and notes and accounts; that, during that period,-Fox & Co. furnished to him merchandise, in the way of his business, to the amount of about $24,000 ; that, at the expiration of- that period, he, in pursuance of that agreement turned over and delivered to Samuel II. Fox the stock of goods, store fixtures, notes and accounts, then on hand, of the value of $27,343.07, which amount was then credited to him and applied on his indebtedness then due to Fox & Co.; that, after the making of the last-mentioned agreement, and while I Willard Fox was so carrying on business, he paid out of its. avails, upon his indebtedness to Fox & Co., the sum of about $10,000 ; that Samuel H. Fox, some time before September 1,1875, sold the La Salle Street lot and realized from it about $14,000, which amoucat was credited upon the indebtedness ofi L Willard Fox to Fox & Co.; that the said sums of $27,343.D7j- $10,000, and $14,000, were all that had ever been paid on said indebtedness ; and that there was due to the plaintiff, at the time of filing the bill, on account of said indebtedness, about $70,657, besides interest.

The bill waived an answer on oath, and prayed for an account of the amount due to the-plaintiff for principal and interest on the security of the Lake Zurich farm; that the defendants be decreed to pay that amount, the plaintiff offering to reconvey the premises to them on such payment; and that, in default of such payment, the defendants be barred and foreclosed of all equity of redemption in and to such mortgaged premises. The. bill contained a prayer for general relief, although it did not pray specifically for the sale of the Lake Zurich farm-; nor did it treat the La Salle Street lot as being subject to a like mortgage with the Lake Zurich 'farm, but only as being subject to be sold by the grantee under the power contained in' the agreement, the proceeds of sale to be applied upon the indebtedness.

On the 21st of April, 1877, I. Willard Fox and his wife put in an answer to'the bill. It denies the indebtedness of $70,000, but admits that a paper drawn up at the instance of Samuel H. Fox stated the indebtedness at that amount. It also avers, that, prior to February 20, 1869, I. Willard Fox had been engaged at Chicago for several years in selling paints, oils and "window glass; that during that time he had sold for Fox & Co. large quantities of window glass made by them, such sale being upon commission; that he never regarded himself as purchasing the glass in the ordinary way; that a short time prior to February 20, 1869, he became embarrassed; that then Fox & Co., under the pretence of making a favorable settlement. with some of his creditors, forced him to enter into an •agreement, wherein he was apparently made to say that he

The answer asks that an accounting may be had between the parties before a master, and avers that all indebtedness from I. Willard Fox to Fox & Co. has been paid; and that

A replication was filed to this answer..

On the 26th of October, 1877, the plaintiff filed an amended bill, under an order made on that day, giving her leave to do so, and requiring the defendants to answer within thirty days. The amended bill is a full and complete bill in itself. It contains mainly the same averments as the original bill, but has some variations and additions. One addition is a statement of the contents of the memorandum signed by Samuel H. Fox, appended to - the agreement, which was not, contained in the original bill; There is also added a statement that Samuel H. Fox did, on the 5th of October, 1869, release and discharge of record the mortgage so held by him on a portion'of the Lake Zurich farm. It states the amount of goods furnished by Fox & Co. to I. Willard Fox, during the time from.' February 20, 1869, until some time in December, 1869, at $12,999.64, instead of $24,000; and that • thé property, amounting to $27,343.07, was turned over and delivered to Fox & Co. in December, 1869, instead of in February, 1870. It also states that fhe indebtedness mentioned in the agreement as $16,000 was in .fact only $15,000, and was due to the First National Bank of Chi

The amended bill states the amount due to the plaintiff, as executrix and devisee, from-1. Willard Fox, at about $100,000, principal and interest, instead of $103,600. ' It waives an answer on oath, and its prayer is the same as that of-the orig--inal bill, and it does not treat the La Salle Street lot as subject to a lien in favor of the plaintiff.

No answer to such amended bill appears in the record, nor is there any stipulation that the' answer to the original bill shall stand as the answer to the amended bill.

On the 10th of September, 1878, an order was made refer

On the 11th of February, 1880, an order was made, modifying such order of reference, by directing the master t® report the testimony taken by him, and not his conclusions thereon.

Plenary proofs were taken in the cause, in July, 1877; November, 1878, September, 1879, November, 1879, December, .1879, and February, 1880. Samuel H. Fox gave a deposition in July, 1877, a second in September, 1879, and a third in December, 1879. I. "Willard Fox gave a deposition in November, 1878, a second in November, 1879, and a third, in February, 1880. Robert B. Merritt, who had been the book-keeper and cashier-of I. Willard Fox from May, 1867, till the summer :.of 1869, gavera deposition in September, 1879, and a second in December,'1879.

In July, 1880, the cause was heard on pleadings and proofs; but before any decision was made,-and bn November 13,1880,. the plaintiff, by leave of the court, amended her bill by inserting an averment to the effect that the agreement of February 20, 1869, contained a recital that I. Willard Fox had sold and conveyed to Samuel H. Fox the Da Salle Street lot, the proceeds thereof to be applied towards payment of the indebtedness from I. Willard Fox to Fox & Co.; that by such agreement that lot was not in any event'to be reconveyed to I. Willard Fox; that the plaintiff had sold and conveyeddhe lot; and that, being willing to do what was just and equitable, she offered to credit and allow to I. Willard Fox the amount for which she had sold the lot, or otherwise, its value, in reduction of the sum due to her front I. Willard Fox.

On the 23d of November, 1880, the defendants filed an answer to the amended bill as amended on November 13,1880. This appears to be a full answer, not only to the amendments of November 13, 1880, but to the amended bill filed October 26, 1877. This answer avers that, on February 20, 1869, I. Willard Fox and his wife executed to Samuel H. Fox a deed conveying the Lake Zurich farm, and another deed conveying

On the.8th of December, 1880, the defendants, by leave of, the court, filed a cross-bill against the plaintiff, who had then become Kate W. Goodwin by her intermarriage with Charles S.- Goodwin, and against her husband, and against Sarah E. B,. Smith, who had become the purchaser of the La Salle Street lot, and her husband, Charles 1VI. Smith. The cross-bill sets forth the prior proceedings in the original suit, and prays that the original bill and the answer to it, and’ the amended bill filed October 26, 1877, and the amendment to it filed November 13, 1880, and the answer filed November 23, 1880, may be taken as a part of such cross-bill.

The cross-bill contains,.in substance, the material averments of the answers before filed, with the further statement, that, in December, 1869, the remainder of the stock on hand in the store of I. Willard Fox was sold for the sum of about $28,000, and the money received by Fox & Co:; that the money received during the time the store was conducted by Fox & Co., from the time they took possession to the time it was closed in December, 1869, amounted to more than $’50,000; that Fox & Co. were liable to I. Willard Fox for the amount of the glass returned to Fox &.Co. at the time they took pos^ session of the store, and also for the money received from the notes and accounts and the. sale of glass during the time the business was conducted by Fox & Co.; that such amounts-would more than pay any charges of Fox & Co. against I. Willard Fox; that, about the 1st of September, 1875, Samuel EL Fox and Henry W. Fox dissolved partnership, and the former conveyed to Henry W. Fox the said real estate, but the latter had full notice of the rights and equities of the cross^ plaintiffs in the premises, añd was not a bona fide purchaser thereof; that Kate W. Goodwin and her husband, on the 7th’ of April, 1880, conveyed the La Salle Street lot to Sarah E. R. Smith; and that she received the conveyance of.it with notice of the rights and equities of the cross-plaintiffs to the premises,' and pending the suit.

On the 20th of December, 1880, Kate W. Goodwin and her husband answered the cross-bill. Their answer, contains the material averments found in the original bill and the amended bills, and in addition alleges, that the defendants in the cross-suit were not parties to' the agreement of February 20, 1869, or to the transactions out of which the same arose; that it .is incompetent for I. Willard Fox to show either a want of consideration or a failure of the consideration upon which such agreement was founded; that, as I. Willard Fox wholly failed to comply with the terms of such agreement, by making payment within the six months therein limited, and the property was thereafter conveyed to Henry W. Fox in consideration of his interest in the assets of Fox & Co. and the same was thereafter-devised to Kate W. Goodwin, I. Willard Fox is estopped from denying that the $70,000 recited in the agreement was due at its date; that, when I. Willard Fox retired from his partnership with Samuel H. Fox, in August, 1857, he left the concern largely in'deHt, and left Samuel H. Fox'to close up the old business, collecting what, he could and paying the debts; that,’in the meantime, the hew firm advanced money to I. Willard Fox, until April, 1862, when the old matters were settled up, and I. Willard Fox acknowledged in writing an indebtedness to Fox & Co. of $5584.82, on' his personal.account;

On the 23d of December, 1880, a replication was filed to the answer to the amended bill.

On the 3d of January, 1881,, Sarah E. R. Smith and her husband filed their answer to the cross-bill, averring that Sarah E. R. Smith took the conveyance of the La Salle Street lot, on her purchase of it from Kate W. Goodwin and her husband, without any notice of any rights or equities of the plaintiffs in the cross-bill, and paid therefor $6625 in cash, which was its reasonable value, and paid it before the cross-bill was filed, and befoi’e any notice that any one else than Kate W. Goodwin claimed any interest in it; that the title to the' lot was in no way involved in the pleadings in the cause at the time of such' purchase, nor. was the agreement of February 20, 1869, set forth in the cross-bill, nor did she or her husband have any notice thereof; and that they cannot be compelled to reconvey the lot, nor can they be in any manner affected by the state of accounts between I. Willard Fox-and Fox & Go.

Replications to the two answers to the cross-bill were filed on the 5th of January, Í881.

On the Tth of January, 1881, an order was made in the original and- cross-suits, referring the cause to Mr. Henry W, Bishop, as a master, to take evidence, and to .make and state, an account between Fox &' Co. and I. Willard Fox, and to report the same, with his findings, to the court.

Under this order of reference, the master took proofs' in February, 1881, May, 1881, and July, 1881, a third deposition of Robert B. Merritt being taken in May, 1881,, and a fourth deposition- of I. Willard Fox in July, 1881. .

On the 30th of November, 1881, the master filed his report, as follows: '

“ This proceeding is brought for the foreclosure of a mortgage executed by I. Willard Fox upon certain real estate known as the Lake' Zurich farm, in the county of Lake and State of Illinois, and lot two (2), in block twenty (20), in Bushnell’s Addition to Chicago, which was given for the purpose of securing the payment of sums of money therein mentioned, which it is alleged had become due the firm of Samuel H. Fox & Co. as the resült of certain business relations between them extending through a number of years, and which are set forth in detail in the bill.

“ The answer of the defendant admits the execution of the mortgage and the agreement supplemental to it, but undertakes to explain the circumstances under which they were made, and denies that at the time of their execution any such sum as is therein claimed was due and owing from' him, and that, by reason of what has since occurred, any such indebtedness whatever exists against him, and avers that, upon á proper settlement of account, there will be shown to be a balance in his favor. .

“ It is for the purpose of examining and stating this account that a reference was made to me by the court.

■ “ It is not necessary for me to review the earlier relations between the parties, culminating in the establishment of the separate business of I. Willard Fox in Chicago, or to examine their accounts prior to their attempted adjustment in February, 1869, showing the sum of nineteen hundred and twenty-three and fifty-three hundredths dollars due upon the individual account of I. Willard Fox, and the sum of sixty-eight thousand two hundred and seventy-seven and fifty-eight hundredths dollars due upon the glass account.

“These debit sums are conceded to bé correct, as well as the payment by Fox & Co. to the creditors of I. Willard Fox of. the. sum of ten thousand nine hundred and seventy-one dollars and thirty cents, making at that date a total su'm of eighty-one thousand one hundred and seventy-two and forty-one hundredths dollars ($81,172.41) due from I. Willard- Fox to Fox & Co.

“ This was the state of the account in February, 1869, when'

I. Willard. Fox became embarrassed in business. The First National Bank, bis largest creditor, having obtained a judgment agaipst him, levied upon his stock oí goods and closed his store, an arrangement was made between him and Fox & Co., resulting in the settlement by them of all the claims against him, ex.cept their own, at a compromise Tate, and the business was resumed, with Ethan Allen Fox, the uncle of the defendant, and I. Willard Fox, in charge. After the settlement made with the creditors of I. Willard Fox, and the restoration of the property from the seizure of 'the First National Bank, and-the resumption of the business, and between • March 23d and November 5th, 1869, additional shipments of glass were made, amounting in the aggregate to the sum of twelve thousand nine hundred and ninety-nine dollars and sixty-three cents ($12,999.63); and it is insisted that these consignments Avere also made to I. Willard Fox, and that this amount should be added as a further indebtedness against him.

“Upon the other hand, it is contended that, in February, 1869, and before the receipt of these shipments, all the business and property was turned over to Fox & Co., and I. Willard Fox and Ethan Allen Fox placed in its management, under the direction of Fox & Co. and their control. Samuel H. Fox swears that these shipments Avere made to I. Willard Fox and formed part of his stock, the remnant of which' was turned over to him' in December foliowing, at which time he insists that the final adjustment Avas made, while Ethan Allen Fox and I. Willard Fox, who Avere in charge and remained there until the stock was all disposed of, SAvear that the goods received after February Avere not billed to I. Willard Fox and hot purchased by him ; and I can find no entries in the books of Fox & Co. showing that they were ever charged to him, but they do show they Avere consigned to Samuel IT. Fox.

“ A. St. John Campbell- and Bobert B. Merritt, book-keepers and clerks at and after the change of possession, swear that it occurred in February, Samuel H. Fox assuming general charge and conduct of the business from that time; and -there is no testimony contradicting it except that of -Samuel H. Fox himself, Avlao sAvears that the change did not take place until December folloAving.

“'The fact that an inventory was made of the' stock in January preceding, and that nqne was made afterwards, seems to me to be a strong circumstance tending to show, in connection with the conduct of the parties and the testimony of Ethan Allen Fox and Merritt, that it was in February and not in December that the property was turned over.

• '“I can find nothing in the record, outside of the testimony of Samuel H. Fox, to justify any other conclusion, and I therefore disallow that item of complainant’s claim, leaving due from I. Willard Fox at this date — February 1st, 1869 — the sum of eighty-one thousand one hundred and seventy-two and forty-one hundredths dollars ($81,172.41), subject to such deductions as shall hereafter appear as proper to be made.

“In this amount is included the sum of seven thousand seven hundred and -eighty dollars and eighty cents ($7780.80) interest, which it is claimed was erroneously charged, and which I deduct from the amount statdd, for the reason that' the testimony does not, in my estimation, justify its allowance. It does not appear that there was any arrangement by which interest ■was to be charged, and the four entries of interest which appear upon the books of Fox & Go. are shown to have been made after the accounts were closed, and do not harmonize with the statements of S. H. Fox in respect to this matter.

“ This charge seems to me 'also not to have been in contemplation with the parties, in view of their personal relations and the history and general character of their business, which, although .not appearing to me to have been strictly of a commission character, seemed to partake somewhat of that nature, Fox & Co. all along making use of I. Willard Fox to dispose of the goods sent him, without such regard to the orders sent them as would prevail with persons dealing together under different circumstances and relieved of their peculiar relations.

“ Throughout all this time, also, the business of I. Willard Fox' seemed to be limited to the supply furnished him from this firm, and I can refer to but one or two instances where he resorted to other sources to enable him to meet the demands of his trade.

“During» the entire periods of this account I find no evi

dence of any settlements having been made or anything done between the parties Out of which any claim for interest could have arisen, and it does appear to me that, in view of the 'fact of I. "Willard Fox having been limited, in the supply sent him by Fox & Oo., to such kind and sizes of glass as they chose from time to time to ship, it could not have been expected of him to pay interest upon the necessary delay and vexation to which he is shown to have been subjected in disposing of goods selected to suit the convenience of Fox & Co., and not necessarily demanded by this trade; and there is no evidence tending to show that this was expected of him.

“ In addition to this credit I have allowed one of ten per cent for breakage of glass, and for stained glass, and cutting down glass into smaller sizes. While the testimony very clearly establishes an allowance in favor of this item, the witnesses are not united upon the amount proper to be deducted under this head. It is, however^ clear to me that, the consignors having sent glass to the defendant all along without reference to the kind ordered, making it necessary for him to constantly cut down to suit his trade, a credit should be made to this extent in his favor, and this is the smallest amount justified by the evidence. Upon this item of account a credit of seven hundred and fifty-five dollars and eighty-two, cents ($155.82) appears upon the books of Fox & Co. to have been made, leaving the sum of eighty-four hundred and forty-three dollars and thirty cents ($8448.80) to be deducted from the amount already reported.

“ In addition to this an allowance should be made for the property turned over to Fox & Co. by I. Willard Fox when the •latter is shown to have entered into possession of the store, with Ethan Allen Fox and I. Willard Fox in charge.

“ This property consisted of glass, evidences of indebtedness, paints, oil¡3, etc., and fixtures, together with what is known as the Merritt mortgage, amounting to a complete-transfer of the entire stock and business of .1. W. Fox.

“ Samuel II. Fox conducted the negotiations for Fox & Co., and says that it was a ‘mutual’ arrangement between the parties, and there is no evidence tending to show that it was

not one entirely satisfactory. No inventory, however, was then taken of the goods and no appraisement of the bills receivable.

.' “ The fact that none was made inclines me to believe that the one taken in January previous was relied upon as all that was necessary for this purpose, and the testimony of the witnesses. in charge of the store at that time,’and by whom, the.only inventory was taken, tends to establish that as the'basis upon which the parties must have proceeded. Ip is hardly possible that.I. Willard Fox, having at last been relieved from" .all the pressing demands upon'him ¡aside from the claim of Fox & Go., should have finally surrendered this large amount of goods and securities to be credited in return for whatever it might bring in other hands!

“There is nothing in the testimony of Samuel H. Fox to show the value of this property, and all the information which we have upon this point is the testimony of the defendant; himself, supported by the evidence of Ethan Allen Fox, Bobert' B. Merritt, the book-keeper, A. St. John Campbell, and other witnesses having relations to the business, and to a greater or less extent of the same-import.

“ All of these witnesses concur in fixing the amount of the inventory of goods and accounts at between sixty and seventy .thousand dollars, no one of them placing it less than the 'former sum, and it is shown that the accounts were all collectible.

“ The division made by the witnesses, taking the lowest respective amounts, shows the glass to ha,ve been worth thirty thousand dollars ($30,000); the paints, oils, etc., fifteen thousand dollars ($15,000); notes collectible, fifteen thousand dollars' ($15,000); the fixtures, fifteen hundred dollars ($1500) (at ■ which they were sold); and the Merritt mortgage, twenty-one hundred and one aij.'d sixty-one hundredths dollars ($2101.61).

.• “If this tostimofty is to'be relied upon, and assuming that the stock was taken possession of, as all the defendant’s witnesses agree in stating, on the 1st day of February, 1869, then, in the absenpe of other preponderating evidence, these figures must be adopted .in •. estimating these’credits, except in , the

single item of paints and oils, where I think a reduction from fifteen to twelve thousand dollars should be made.

“It is contended that the books of I.'Willard Fox .and the inventory made by hiin would exhibit still larger credits than these even, and their destruction by fire is a misfortune which must always be felt in determining the exact relations be: tween these parties, but it- is a fortunate circumstance that the witnesses and parties to these transactions still survive, furnishing, as far as they do, the information upon which this. account must be stated.

“ On the other hand there is absolutely no testimony" whatever offered as to the value of the property when it is claimed to have been turned over. • Samuel H. Fox swears that he had no knowledge whatever as to it, and the only information coming from the complainant upon this subject is derived from the account upon the books of Fox & Co., with I. Willard Fox, showing that from the stock, fixtures and -notes and accounts there was realized the gross sum of twenty-seven thousand three hundred and forty-three and no' hundredths dollars.

“ An examination of this account/ however, show's that it is but a partial one, and does not fully account for all that was turned over to Fox & Co., and is essentially wanting in the specific information to which the defendant would be entitled if he was bound by such independent disposition of the property as Fox & Co. chose to make of it.

“ It is contended upon the part of the defendant, that he is not so bound, and that the complainant must account for all the property he received, at the prices which they were then shown to be worth.

“It seems to. me that this is peculiarly a case where that rule should be applied, and the careless and incomplete manner in which the accounts were kept by Fox & Co., after their receipt of the property, renders such application absolutely necessary in stating this account. I can see ■ no other course left to adopt, and have therefore credited the defendant with those five items modified in the way stated,, which leaves a balance due the complainant of four thousand three hundred and

forty-six and seventy one-bnndredths dollars ($4346.70), ending with December, 1869.

“ I append hereto a statement, marked Exhibit ‘ A,’ which shows the account stated: ' /.

• “Exhibit {A.’

“I. Willard Fox to Fox and Company.

-“Dr.

“ To due on personal account. -. . .$1,923 53 '

“ « « « g]ass account .... . . . . . . 68,277 58-

“ “ paid in settlement with creditors .• . . 10,971 30.

$81,172 41

“Or,

“By interest included' in glass ac- • count improperly . .■ . . . $7,780 80

“Damages from breakage, stained ■ glass, and cutting down (less $755.82, already allowed), .and estimated .at ten per cent . . ■8,443 30

“Notes shown to have been collectible .......... 15,000 00

“Paints, oils, etc.. 12,000 .00

“ Fixtures sold. 1,500 00

“ Merritt mortgage . . . •. . .' 2,101 61

“ Glass returned at date of settlement 30,000 00

• 76,825 71

“ Leaving a balance due complainant . . $4,346 70

. “ I further find, from the evidence, that, on the fifth day of November, a.d. 1875, Henry W. Fox, his wife joining,' executed a mortgage upon the 532 acres of the land included in the mortgage sought' to be foreclosed in this proceeding, and, known as the Lake Zurich farm, to secure the payment to one Loring Monroe, of the State of New Tork, in six years, with interest semi-annually, and at the rate of seven per cent, and which is a subsisting lien upon said,property,

“ It '-is agreed between the counsel that the full amount of

said loan is due from Henry W. Fox, with interest from 'the 5th day of May last, leaving due at this date, as a charge upon said property, the sum of twelve thousand dollars for the principal, and four hundred and sixty-nine dollars for interest thereon, or a total sum of twelve thousand four hundred and sixty-nine-.dollars ($12,469).”

That report was made in the original suit.

On the 21st of December, 1881, the .plaintiff in the original suit filed the following exceptions to the report of the master :

“ First exception. For that the said master refused to suppress the depositions of the defendants, I. Willard Fox and Eleanor F<i>x, but, on the contrary, treated their testimony as competent and relied upon it in making his findings in this case.

“ Second exception. For that the said master .refused to allow in favor of complainant, and against I. Willard Fox, the sum of $12,999.63, being the amount of glass shipped by Fox & Co. to I. Willard Fox-, and received by him, between March 26th and November 5th,, 1869.

“ Third exception. For that.the said master improperly disallowed the sum of $7780.80 in' interest which had accrued before February, 1869, and failed to allow to complainant any interest since that time.

“Fourth exception. For that the said master disregarded the contemporary documentary.writings and agreements made by ■ the parties, and the oral testimony confirmatory thereof, and upon the mere opinions’of witnesses improperly allowed to defendant, I. Willard Fox, credit for the following amounts, to wit': .

“ 1. The sum of $8443.30, damages from breakage, stained glass ánd cutting down, estimated at temper centum.

“ 2. The sum of $15,000 for notes shown to have been collectible.

“ 3. The sum of $12,000 for paints, oils, etc., turned over to Fox & Co.

“ 4. The sum of $1500 for fixtures sold.

“ 5. The sum of $2101.61 for the Merritt mortgage.

“ 6. For $30,000 for glass returned at the date of settlement.

“ Fifth-exception. For that the said master, while charging

the firm of Fox & Co. with the AVhole value of the stock in the store of I. Willard Fox, makes no- allowance of any part of the sum of $23,970.99, being the amount of the account of-Fox '& Co. against I. Willard Fox between February and December, a.d. 1869.”

On the 3d of January, 1884, the cause was heard on such exceptions, and oñ the' pleadings and' proofs. Before, any decision was made-, and on the 9th. of June, 1884, the cause was referred to the same master -to take proof and ascertain and report “the present value of the La Salle Street lot,” and also to take evidence as. to the amount due on the mortgage for' $12,000, executed by Henry W..Fox to Loring Monroe.

. In JuneJ 1884, the master took- testimony as to the matters so referred th him, and on the-11th of July, 1884, he filed his reportj finding the then value of the La Salle Street lot to be $250 per front -foot, and the value of the entire property, of fifty f$et front, to be $12,500. The report says:

“ The testimony of 'the Avitnesses.upon this point varies from $225 to $300 per foot.. The average value as established’ by the- defendants’ witnesses would be $285 per foot, and the average-value as established by all the witnesses would be $230 per foot; but in estimating, this value I have.taken more into consideration the opinions of witnesses who . have shown a larger familiarity with this’property and that adjacent to.it, and whose dealings m connection with’ the property have been more. extensive and of a more recent date, and as the result' of this Í have come, to the-conclusion stated.”-

The report also found that there was due, June 9, 1884, on the mortgage of May 5, 1881, executed by Henry W. Fox and his wife:to Loring Munroe, on the Lake Zurich farm, $15,059, being for principal $12,000, and for interest- $3059.

The plaintiff in the original suit filed exceptions to the last, named report, as follows:

“1st exception.. And'now comes the said complainant,.Kate W. Fox, by Charles H. Wood, her solicitor, and-excepts to the finding of the said master that, the said La' Salle Street lot is of the value of $12,500, and for cause of exception showeth

that the. said finding is wholly insufficient upon which to found a decree for the reasons.

“(1) That the agreement between the defendant, I. ’Willard Fox, and F'ox & Co. of February, I860, and the deed of this lot made by the former in pursuance thereof, were absolute and unconditional, and no right of redemption attached to that property ;

“(2) That I. Willard Fox having conclusively admitted that he owed at the time of said agreement the sum of seventy thousand dollars, as the court’ has found, the lot was; fully paid for at that time, and to charge the. complainant with the present value of the lot is to cause her to lose the interest on its value from that time to the present, as well as all taxes that she has paid.

“ 2d exception. For that the master should have found the value of the lot in February, 1869, when the" deed to it was made, or at least in February, 1875, when the complainant • acquired it, for otherwise, although fully paid for, the complainant would have the burden of carrying the property, while the defendant, I. Willard Fox, would get the whole benefit of.it.

“3d exception. For that the said master should not have found the present value of the lot without also having found the interest on its value since February, 1869, and the taxes thereon' since paid by the complainant, and deducted the same from its present value.

“4th exception. For that the master erred in finding the amount due upon the Monroe mortgage, because that mort-. gage cannot in any form be made a basis of any decree under the issues in this case, and because it does not appear who is the owner of said mortgage, nor is the owner a'.party to this proceeding, and because,'if-paid by this decree, the court cannot prevent the owner from foreclosing it in any proper form, since, he is in no manner bound, by this decree.”

On the 29th of July, 1884, a- decree was made, entitled in the original’ and cross-suits, arid-which found as follows: (1) That'I. Willard Fox is indebted, to Kate W. Goodwin, as the legatee and devisee of Henry W. !Fox, deceased, in the sum of

The decree then 'provided as follows: (.1) That I. Willard Fox should pay into the- registry of the court for Kate W. Goodwin, by the 1st of September, 1884, $16,536.63, with interest thereon at the fate of six per cent per annum, provided Kate W. Goodwin, or some one for her, should procure the release of the premises '.described in the deed of trust or mortgage to secure the debt of Loring Monroe, from all incumbrance created thereby ; (2) that, in default of such payment, I..Willard Fox and his wife should be barred and foreclosed of all right and equity of redemption “ in said premises,” and the master should sell the same ; that, in case a release of the lauds described in the trust deed or mortgage should not be procured by the 1st of September, 1884, then I. Willard Fox should pay into the registry of the court, for Kate W. Goodwin, $1477.63, by the 1st of November 1884, with interest

On the -29th óf September, -1884/an order-was entered ^amending the decree’ by inserting' provisions (1) that the first exception ..to .the master’s report be sustained, so far-dh it relates to the testimony, of - Eleanor Fox, and be overruled, so far as it relates to the.testimony of I.'Willard Fox; .(2) that the second exception be overruled; (3) that the -third exception be sustained; (4) that the fourth exception be sustained so far ás .it relates to the item of $8443.30, -damages for breakage óf glass ; (5) that the finding of the master as to the value of the' glass, paints, oils, store fixtures and note's and accounts, turned over .to Fox. & Go.-by I. Willard Fox, be modified and changed,.

It appears by the record, that I. Willard Fox died on the 29th of August, 1884, leaving a widow and six children as his heirs at law, and a will by which he devised all' his real estate to his widow for life, with remainder to his children; that, on February 26, 1883, he and his wife conveyed to William C. Goudy and Louie P. McDaid the La Salle Street lot; that no release was procured by Kate W. Goodwin, or any one for her, of the Late Zurich farm from the mortgage to Loring Monroe; that Sarah E. It. Smith had not paid the $11,500with interest; that there had been paid into court, by and before November 1,1884, the $1477.63, for Kate W. Goodwin; that all the costs of the suit had been paid on behalf of the estate of I. Willard Fox; and that deeds had not been .made by Kate W. Goodwin and her husband, and by Sarah E. B. Smith and her husband, as required by this decree.

On these facts,- the court, by an order made January 13, 1885, substituted the widow and children of I. Willard Fox as parties in his place, and ordered that the- master execute a deed, on behalf of Kate W. Goodwin and her husband, of the Lake Zurich farm, ahd also a deed to Goudy and McDaid of the La Salle Street lot. The master, on .the 26th of January, 1885, reported that he had executed those-dee.ds, the deed of the Lake Zurich farm being a deed to the widow of I. Willard’ Fox for her life, and a deed to his children in remainder; and the court, by orders made the same day, approved and confirmed those deeds. It also appears that, on the 4th of March,' 1885, the court, made an order granting a "writ of assistance, to put Goudy and McDaid in possession of the La Salle Street-lot.

On the 20th of June, 1885, Kate W. Goodwin and her husband, and Sarah E. B. Smith and her husband, perfected, an appeal to this court from the decree in the original suit and, the cross-suit.

' As to the exception that the master refused to suppress the depositions of I. Willard Fox, and treated 'his testimony as competent, and relied upon it- in making his findings, it nor where appears by the record that any objection was made before the master to that testimony, or that any motion was made' before him to suppress such depositions, or that any motion was made before the court to suppress them; and, as the only ruling of the court in regard to them was that the first exception should be overruled, so far as it related to the testimony of I. Willard Fox, it may very well be that the court overruled such exception because, it being an exception that the master refused to suppress the depositions, the court could not find as a fact that the master had refused to suppress them.

Irrespective of this, § 858 'of the Revised Statutes of the United States does not apply to the present case. • It reads as follows: “In the courts'of the United States, no -witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried: Provided, That in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall .be allowed to testify against the other, as to any transaction with, or statement by, .the

In the present case, although Kate W. Goodwin was executrix of the will of her deceased husband, Ilenry W. Fox, she did not ask for a decree in her favor as executrix but she claimed an interest in the Lake Zurich farm and in the La Salle Street lot only as devisee of that real estate under her husband’s will; and the final decree finds that I. Willard Fox is indebted to her, “ as the legatee and devisee ” of her husband, in the sum of $15,971.30. Moreover, the material transactions about which .1. Willard Fox testified, namely, those relating to the instrument of February 20, 1869, and what ■ took place after that date, were transactions between himself and Samuel H. Fox, and not between himself and Henry W Fox.

There is a great deal of testimony in the record bearing upon the question of the damages claimed by I. Willard Fox for the breakage of glass, and for “ stained ” glass, and- for cutting down glass into smaller sizes, prior to February 20, 1869. The master allowed against Kate W. Goodwin the sum of $8443.30 for such damages; and also added to the credit side of the account of I. Willard Fox $7780.80, for interest which he found had been improperly included in the glass account, as a charge for interest accruing against I. Willard Fox prior to February 20, 1869. Kate W Goodwin excepted to the allowance to I. Willard' Fox of the $8443.30, and the court sustained the exception and excluded that item. She also excepted to the disallowance to herself of the $7780.80, and .the court sustained that exception also. . This was, in effect, a ruling by the court that the parties could not go behind the

" There is nothing inconsistent with the agreement of February 20,1869, in the fact, that the stock of goods in Chicago was turned over by I. Willard Fox to Samuel- II. Fox, representing Fox &. Co., in February,-1869, and that Fox & Co., from that-'-time until December, 1869, carried on- the business of the- store at Chicago, I. Willard Fox representing them in the business as their agent. The agreement of February, 1869, states that I. Willard Fox “has sold and conveyed” to Samuel - II. Fox the stock of goods and the store fixtures, notes, -books and accounts, “with power-forthwith, at such times and in such manner ” as Samuel H. Fox should deem- best, to sell and collect and convert into money, the goods, fixtures, notes and. accounts, and apply the proceeds to the payment of the indebtedness to Fox & Co. This transfer being then made, and' the business being afterwards carried on by Fox & Co, for themselves until December, 1869, it would have been entirely inconsistent with this arrangement that Fox & Co. should -sell to I. Wiliam Fox the glass they sent him afterwards, prior to'

The master disallowed th'e $7780.80 of interest which accrued before February, 1869, as having been improperly included ■ in the glass account, for the reason that, in his' judgment, the testimony did not justify its allowance, it not appearing that there was any arrangement by which interest was to be charged, and the four entries of interest which appeared upon the books of Fox & Co. being shown to have been made after the accounts were closed, and not harmonizing with the statements of Samuel H. Fox in respect to the matter; that the business between I. Willard Fox and Fox & Co., prior to February 20, 1869, partook somewhat of a commission character; that such business was mainly and substantially limited to the ■supply of glass furnished to I. Willard Fox by Fox & Go.; that during that time no settlements were made, nor was anything done, between the parties, out of which a claim for interest' could have arisen; that the glass sent to I. Willard Fox by Fox & Co. was limited, as to kinds and' sizes, to such as Fox & Go. chose from time to time to send ; that, under such circumstances, it could not have been expected that he would pay interest for the time occupied in disposing of the glass; and that there was no evidence tending to show that Fox & Co. expected he would pay interest. As Katé W. Goodwin, by her third exception to the master’s report, objected to his dis-allowance of the $7780.80 of interest, and the court sustained that exception and allowed that item of interest to her, and the ■ heirs and representatives of I. Willard Fox have not appealed, from the decree, the sustaining of that exception

. The third exception also objects that the master, failed to-allow to Kate W. Goodwin any interest since February,' 1869. The court sustained the third exception as. to that branch of it also; and it is assigned here by Kate W. Goodwin for error, that the Circuit Court erred in failing to allow such interest. The effect of the ruling of the court, in sustaining the third exception, was to. hold that the master improperly failed .to allow to Kate W. Goodwin any interest after February, 1869.' The court, however, in its decree, allowed nothing to her as interest lor the time after February, 1869, or on any amount, or for any time. The master says nothing in his report about the question of interest after February, 1869. It is now contended, on the part of Kate W. Goodwin* that, as the agreement of February 20, 1869, admitted the sum of $70,000-to be due,.and it was a liquidated demand at that time, it should draw interest either from that time or from- the 20th of August, 1869, the expiration of the six months named in that agreement.

The statute of Illinois, § 2, c. 74, Kevised Statutes of Illinois of 1874, which has been the law of Tllino-" since 1845, provides as follows: “ Creditors shall be allowed to receive at the rate of six per centum per annum, for all moneys after they become due on any bond, bill, promissory note; or other instrument of writing; on money lent or advanced for the use Of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance; on money received to .the use of another, and retained without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment.”

We think that, under this statute, Kate W. Goodwin is entitled to be allowed the legal Illinois rate of interest from August 20, 1869, on the $70,000 named in the agreement óf that date, and like interest, from the proper dates, on the

It is also assigned by Kate W. Goodwin for error, that the Circuit Court erred in refusing to sustain her fourth exception to the master’s report, as to the amount of assets of I. Willard Fox, properly chargeable to Fox & Co., and in increasing the amount of the same as found by the master. The master found'buch amount to be $60,601.61, consisting of the--items of $15,000 for notes shown to have been collectible, $12,000 for paints, oils, etc., turned over to Fox & Co., $1500 for fixtures sold, $2101.61 for the Merritt mortgage, and $30,000 for glass returned at the daté of settlement. The court, in disposing of' the fourth exception, modified the finding of the master, and fixed the value of the above-named five items, amounting to $60,601.61, at the gross sum. of $65,0.00. It arrived at' the amount of $15,971.30, stated in its decree as the indebtedness of I. Willard Fox to Kate W. Goodwin, by the following calculation :.

Indebtedness fixed by the agreement of .February 20, 1869 .• . ..$70,000 00

Add the amount found by the master as paid by Fox & Co. to the creditors of I. Willard Fox . 10,971 30.

$80,971 30

Deduct the value of the'assets of I. Willard Fox . 65,000 00

Balance ........... $15,9.71 30

To this sum of $15,971.30 the court added the $565.33 found by the master as having been paid by Kate W. Goodwin for taxes on the La Salle Street'lot, making a total of $16,536.63, with which sum, and interest thereon at the rate of 6 per cent per annum from the date of the decree,. July 29, 1884, it charged I. Willard Fox. The court did not charge to I. Wil

We think it clear that the Circuit Court- erred in giving credit to I. Willard Fox for the value of his assets as having been turned over to Fox & Co. in February, 1869, at the gross sum of $65,0.00. The terms of the agreement of February 20, 1869, were only that the goods, wares, merchandise, fixtures, notes, accounts and La Salle Street lot should be sold, 'collected and converted into money, and the proceeds be applied to the payment ©f the $70,000 and of the amount which Fox & Co. had paid or should pay to the creditors of I. Willard Fox.. Therefore, I. Willard Fox is entitled to be credited only with-the proceeds of the property mentioned in the agreement ,as having been sold and conveyed to Samuel H. Fox. The business of the store in Chicago, after February 20, 1869, must be considered as having .been carried on by and on behalf of, and for the benefit of Fox &r Co., through I. Willard Fox .as their agent, with the stock of goods turned over to Fox & Co. at that date, and the goods which thereafter, and prior to December, 1869, they sent to I. Willard Fox for sale on their behalf. The credit by the master to I. Willard Fox of the $60,601.61, and the credit by the court to him of the $65,000, both of them proceed upon the erroneous view, that the value of the collectible notes, paints, oils, etc., fixtures, Merritt mortgage'and glass were to be deducted as of the date of February. 20,1869, the date of the settlement, without regard to the sale or collection of them, or their conversion into money, or their proceeds. Fox & Co. were riot'chargeable with the value of the property turned over i-n February, 1869, but its proceeds were to be credited by Fox & Co. when they should be realized, the property to be disposed of at’ such times and in such manner as Samuel H. Fox should deem best. They did not agree to take the property at a fixed price, in February, 1869

No specific error is assigned in regard to the overruling of the fifth exception to the report.

It is also assigned for error, that the Circuit Court erred in overruling'the fourth exception to the'report of July 11,1884, and in confirming that report. The master, in his report of July 11, 1884, found that there was due, on the 9th of June, 1884, upon the mortgage made by Henry W. Fox and his wife to Loring Monroe, covering the Lake Zurich' farm, for principal and interest, $15,059. The decree of the court was that the $16,536.63 should be paid by I. "Willard Fox, provided Kate V- Goodwin should procure a release of such mortgage;..but, in case the release should not be obtained, then I. Willard Fox might pay into court, for Kate W.,Good win, $1477.63, being the difference. between $15,059 and $16,536.63. Kate W. Goodwin excepted to such, report, as to the finding of the amount due upon the Monroe mortgage, because that mortgage could not, in a¡ny form,- be made the basis of any decree under the issues in the case; and because it did not appear who owned the mortgage, nor was its owner a party to the suit; and because, if it.were paid under the decree, the court could not prevent its owner from foreclosing it. ■ It is assigned by Kate W. Goodwin for error that the Circuit Court erred in -overruling such exception, á,nd in deducting, by its decree, the amount of the Monroe mortgage from the amount due to Kate W. Goodwin. We think this assignment of error is not' well taken, and that the exception to the report in that particular -was properly overruled.

It is further assigned for error, that the Circuit Court erred. in overruling the first, second ánd third' exceptions to the master’s report -filed July 11, 1884, and in confirming that report. Those exceptions relate to the La Salle Street lot, and to the fixing Of its value at $12,500, as of the 9th of June,-1884.

We think that the Circuit Court, in charging Kate W. Good

■ On the foregoing; views, we are of opinion that the proper mode of stating the account between the parties is as follows:

Dr.

Amount found due by the agreement of February 20,1869 .. $70,000 00

Glass furnished by Fox & Co. to I. Willard Fox, between March 23, 1869-, and November 5, 1869, and represented by notes and accounts turned over to Fox & Co. 12,999 69

Amount paid the First National Bank of Chicago, out of the proceeds of the property turned over to Fox & Co.'. 10,000 00

Amount paid the same bank, raised by a mortgage given on the La Salle Street lot . , . . . 6,000 00

Amount paid by Fox & Co. in settlement of other debts of I. Willard Fox.. 10,971 30

Or. $109,970 99

. Amount of proceeds received, and debited above as paid to First National Bank of Chicago .... $10,000 00

Amount received as insurance money on the building on the La Salle Street lot, which amount was applied to pay off the mortgage, above mentioned, on the lot . . 6,000 00

Proceeds of the sale of the La Salle . Street lot, to Henry W. Fox . . 8,000 00

Proceeds of sales of goods and other property by Fox & Co., and collection of notes and accounts turned over to Fox & Co. . . . 27,-343 07

-— 51,343 07'

Balance due by I. Willard Fox to Fox & Co. $58,627 92

Proper provision must be made to carry out our decision that the fourth exception to the report of July 11, 1884, was ■

The above items of debit and credit are principal sums, and interest must be calculated and added, at the proper rate, from the proper dates, as before stated. It may be, also, that there will be some items of taxes paid, to be adjusted.

It is manifest, that the Circuit Court credited I. "Willard Fox with the gross sum of $65,000, as representing the collectible notes, the paints, oils, etc., the fixtures, the Merritt mortgage, and the glass in the store, February 20,1869,. instead of crediting him merely with the proceeds of those assets, when realized. The $10,000 paid to the First National Bank by Fox & Co. was ■paid .out of such proceeds. The $12,999.69 of glass furnished by Fox & Co.,, after February 20, 1869, was represented by some of the $15,000 of collectible notes credited to I. Willard Fox by the master, and forming part of the $65,000 credited to him by the court; and yet no allowance was made to Fox fc Co. for the $12,999.69 of glass so furnished.

It was proper that I. Willard Fox should pay the costs of he Circuit Court.

The decree of the Circuit Court is reversed, and the case is remanded. to that court with a direction to talce such further proceedings as may he in aecorda/nce with law, and not inconsistent with this opinion.