Morgan County IL Archives Court.....Gordon, V Crooks 1849
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 22, 2008, 7:59 am

Source: Reports Of Cases Illinois
Written: 1849

James Gordon v. William Crooks.

Appeal from Morgan.

1. New trial — when granted. Where it is apparent that the jury has mistaken 
the evidence, or misunderstood the law, as applicable to the evidence, a new 
trial will be granted.(1)

This was an action of debt, brought in the Morgan county circuit court, by 
Crooks against Gordon. The declaration avers, that Gordon, the defendant, at 
Lynnville, to wit, at the county aforesaid, on the 30th day of June, 1843, 
made to the plaintiff, and one Alexander Benton, who has since, to wit, on or 
about the 22d January, 1845, departed this life, his, the said defendant's, 
promise and undertaking in writing, in the words and figures following, to wit:

"Rec'd, Lynnville, June 30th, 1842, of William Crooks and Alex. Renton, debts 
for collection, amounting to the sum of two hundred dollars, which I promise 
duly and faithfully to collect, and to pay as soon as collected, and to give 
up all the uncollected debts whenever called for by the aforesaid William 
Crooks and Alex. Renton, or pay the sum of two hundred dollars.
"James Gordon."

Which promise and undertaking is in the possession of the defendant, or has 
been destroyed by him; and the plaintiff avers that defendant has collected 
the sum of seventy-five dollars "which the plaintiff, through the agency of 
one of his attorneys, David A. Smith, demanded special payment of" on, 
etc.; "and that the defendant should give up the remainder of said debts 
uncollected," which defendant refused to do, whereby an action accrued, etc., 
to the damage of the plaintiff, of two hundred dollars.

To this declaration defendant pleaded several pleas. By the first plea he says 
he received said claims of the said Renton and Crooks, as a justice of the 
peace, for collection, to return, etc., and to pay over, etc., averring that 
Renton never did, in his life time, nor has Crooks, by any person having 
authority, demanded the money collected, or the claims uncollected, before the 
commencement of the suit; concluding with a verification. The second was a 
plea of non est factum, verified by defendant. The third plea avers the 
payment by him to Renton and Crooks, of all the money collected. The fourth 
plea was a plea of setoff. The fifth plea avers that the plaintiff, and one 
Turner, were partners in trade, at Lynnville, etc., under the name and firm of 
Turner & Crooks, and that defendant had loaned to said Turner, for the use of 
Turner & Crooks, one hundred dollars, or thereabouts, and that Turner & Crooks 
were indebted to him for the rent of a room, in which they did their business, 
and that acting by their agent, Renton, and by themselves, for the purpose of 
paying their indebtedness to him, they placed these claims in his hands for 
collection; that these claims were due to Turner & Crooks, and not to Renton; 
admits that he collected a part of the claims, and avers that Turner, Crooks 
and Renton collected a part of these claims; that many of the claims were 
against insolvent debtors; and that after he had collected all that could be 
collected out of said claims, he accounted with Crooks and Turner and Renton, 
as their agent, and settled with them; and by consent of all parties, the 
amount collected by Gordon was applied to the payment of the amount due from 
Turner & Crooks to him, etc. The sixth plea avers that the claims received by 
defendant for collection, were the property of and due to Crooks and Turner, 
and that Renton had not any interest in them, that defendant had accounted 
with Crooks and Turner for the amount collected, and offered to return the 
claims uncollected, and that all the claims had been accounted for, to and 
settled with Turner, etc. The seventh was a plea of nil debet. Upon all these 
pleas issue was joined, and a trial by jury, and judgment by Woodson, judge, 
for $43 30, at November term, 1848. A motion for a new trial was denied. The 
defendant then prayed his appeal, and filed his bill of exceptions, containing 
the evidence. The opinion of the court contains so much of the evidence as is 
necessary to a full understanding of the question of law decided.

M. M'Connel, for appellant: That instruction on the plea of non est factum, 
was wrong, inasmuch as that plea changes the issue, and imposes upon plaintiff 
a burthen which would not otherwise belong to him. That the instruction in 
relation to the contract, stating that it could not be explained, etc., was 
wrong. It cut off the issues raised on the fourth and fifth pleas. That 
instruction in relation to the testimony of Turner was wrong; his testimony 
not being attacked or impeached. The motion for a new trial ought to have been 
allowed, as this case comes strictly within the rule laid down in the case of 
Dawson v. Robbins, 5 Gilman, 72. No authority is shown in any person to 
institute the suit, or to make the demand of defendant upon the instrument in 
writing. The defendant was not bound to recognize the demand; it did not come 
from any person authorized to make it. If the authority was sufficient for 
some purposes, it did not authorize the collection of money due to Crooks and 
Turner, or to Crooks and Renton, but to Crooks alone. The authority, such as 
it was, was improperly before the jury, it not having been read in evidence. 
Whitney v. Whitman, 5 Mass., 404; Taylor v. Sorsby, Walker's Miss. Reps., 97.

D. A. Smith, for appellee: Courts will not lightly disturb the verdicts of 
juries, particularly where there has been contradictory evidence. 5 Gilman, 
569.

Caton, J. We are satisfied, after a very careful examination of the testimony 
in this case, that the jury either mistook the evidence, or that they 
misunderstood the law, as applicable to the evidence.

We think the jury were warranted in believing, that the receipt upon which the 
suit was brought, in terms, was given to Crooks and Renton. Mrs. Renton nad 
inspected it recently, and taken a copy of it, which she produced in court, 
while Turner, who says it was given to Turner & Crooks, had never seen it 
since it was originally given, and could not pretend to speak of its contents 
except in general terms. Although, as Turner says, it may have been given for 
accounts due to Turner & Crooks, yet there are some circumstances rendering it 
probable that it may have been given in the form as stated by Mrs. Renton. 
Turner says that he was about to leave the state, and the receipt was to be 
left with Renton, who was doing business for Crooks, and who, it is probable, 
was expected to settle with Gordon, for the accounts mentioned in the receipt. 
It may have been thought convenient, therefore, to insert the name of Renton 
in the receipt, instead of the name of Turner.

Besides Turner, there are four witnesses, who swear that Turner & Crooks had 
been carrying on business in partnership, and that Renton, in his life time, 
admitted that Turner & Crooks were indebted to Gordon for money loaned, and 
that these accounts were placed in his hands, to provide for the payment of 
the lent money. This is substantially the same account that Turner himself 
gives of the transaction. There are two other witnesses, who testified that 
the accounts for which the receipt was given, were in the hand-writing of 
Turner, one of the members of the firm of Turner & Crooks.

There is no pretence that there was more than one receipt given by Gordon; and 
although that expressed on its face to be given to Crooks &, Renton, we think 
it established, beyond controversy, that it was, in fact, given for accounts 
due to Turner & Crooks, and to provide for the payment of a debt due from the 
firm to Gordon; and we see no reason to doubt the statement made by Turner, 
that he subsequently settled with Gordon; which settlement was approved by 
Crooks. That Turner, as one of the members of the firm to whom the accounts 
belonged, was authorized to make such settlement, and discharge the defendant, 
can not be doubted, and as this does not appear to have been explained to the 
jury, it is probable that they supposed, as the receipt was given to Crooks 
and Renton, Turner, although interested in the subject matter, had no right 
further to interfere with it. The mistake was a natural one, and, we think, 
explains a verdict which would otherwise appear unaccountable. We are of 
opinion that a new trial should have been granted. Several other errors are 
assigned, but we do not think it necessary to investigate them.

The judgment of the circuit court is reversed, with costs, and the cause 
remanded. 

Judgment reversed.

--------------------
Cited — Higgins v. Lee, 16 Ill., 495; Chi. & R. I. R. R. Co. v. M'Kean, 40 
Ill., 218. 

(1) So held in Higgins v. Lee, 16 Ill., 495. See as to new trials Keaggy v. 
Hite, 12 Ill., (ed. 1886), 99 and note 1; Bloomer v. Denman, 12 Ill. (ed. 
1886), 240 and note 1.

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of 
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By 
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar. 
CHICAGO: CALLAGHAN & CO. 1886.

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