{
  "id": 4979729,
  "name": "Stephen Martin et al. v. Elias B. Rhea",
  "name_abbreviation": "Martin v. Rhea",
  "decision_date": "1889-12-16",
  "docket_number": "",
  "first_page": "636",
  "last_page": "640",
  "citations": [
    {
      "type": "official",
      "cite": "32 Ill. App. 636"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 495,
    "char_count": 9314,
    "ocr_confidence": 0.514,
    "sha256": "88031fc5eb2e32188f52b826740e4721db5ce9b19349fa83325dff116b0a3dff",
    "simhash": "1:0a23b702f1ee8ddf",
    "word_count": 1583
  },
  "last_updated": "2023-07-14T18:59:20.043421+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Stephen Martin et al. v. Elias B. Rhea."
    ],
    "opinions": [
      {
        "text": "Upton, P. J.\nThis was an action in assumpsit, commenced to the February term, 1888, of the Peoria Circuit Court, by the appellee against Stephen Martin, Chas. O. Smalley, John C. Duncan and Chas. O. Peters, as partners, etc. Martin and Peters only were served with process. The declaration contained the common counts consolidated. The defendants served with process pleaded the general issue, a plea denying joint liability verified by affidavit, and the statute of frauds.\nThe record shows that some time in the year 1882 the firm of \u201cRhea, Smalley & Co.\u201d was formed for the purpose of dealing in agricultural implements. That firm continued in business until the fall of 1883, when it was succeeded by the firm of \u201c Rhea, Smalley & Bowman.\u201d E. B. Rhea, C. O. Smalley, W. R. Riley and Bateman Bowman comprised its members. This last named firm continued in business until Feb. 2, 1885, when it was succeeded by the firm of \u201c Rhea, Smalley & Co., No. 2,\u201d Bowman and Riley retiring and the defendant Charles O. Feters, becoming a member of the new firm. Some time subsequent, Stephen Martin became a member of the same firm. On the 10th day of March, 1885, this last named firm was succeeded by the firm of \u201c Martin, Smalley & Co.\u201d composed of the same persons as the preceding firm with the exception, that appellee Rhea sold his interest in said business and firm to Thomas Martin, who then became a member thereof. When appellee retired from the firm and sold his interest therein, the firm of \u201cRhea, Smalley & Co.\u201d was dissolved and the new firm of \u201cMartin, Smalley & Co.\u201d was formed. This new firm took the entire assets of the old firm of \u201c Rhea, Smalley & Co.\u201d and assumed its liabilities as shown by the boohs of the old firm, and no other or further liabilities.\nThe appellee claims that after his retirement from said firm of \u201c Rhea, Smalley & Co.\u201d he paid out for that firm on its liabilities, which the firm of \u201c Martin, Smalley & Co.\u201d assumed and agreed to pay as above stated, various sums of money, aggregating \u00a7724.21, upon which he credits two items aggregating $408.33, leaving a claimed balance due him of \u00a7315.88. To recover that amount this suit was brought. A bill of particulars was filed by the appellee before the trial court which is as follows:\nStephen Martin et al.\nTo Elias B. Rhea, Dr.\nTo judgment and costs for rent..........\u00a7195 12\nTo another month\u2019s rent................ 183 33\nTo note and interest of Kinsey & Mahler.. 189 78\nTo money paid to Cratty Bros., Chicago, for suit of replevin of a car load of wagons.. 100 00\nTo attorney\u2019s fees paid J. S. Lee in suit with H. O. Collins......................... 15 00\nTo expenses to Chicago to attend suit...... 13 10\nTo interest on money paid out............ 27 88\nTotal....................'........\u00a7724 21\nCredits as follows, to wit:\nReceived of M. O. Collins for heating apparatus in Collins\u2019 building................$22,5 00\nCollected of Martin & Co. one month\u2019s rent. 183 33\nBalance due said Rhea...................315 88\nTotal............................$724 21\nDuring the trial below, the above bill of particulars was amended by appellee by striking out the item of $189.78 charged for principal and interest on the \u201cKinsley & Mahler \u201d note, and by further striking out the item of $225, of the credit received by appellee from Mrs. Collins in settlement for the heating apparatus in the office of the building leased to the firm of \u201c Rhea, Smalley & Bowman,\u201d thereby increasing appellee\u2019s claim to $351.\nThe cause was tried by a jury in the court below and a verdict returned for the appellee with damages assessed at $351.10, from which at a subsequent term of court was remitted by appellee the sum of $63.40. The Circuit Court rendered a judgment for the appellee for $287.70 with costs, from which judgment an appeal was taken to this court.\nThe record discloses that the building occupied by the firm of \u201cMartin, Smalley & Co.\u201d at the commencement of this suit was held under a'.lease originally executed by Mrs. Collins to the before mentioned firm of \u201c Rhea, Smalley & Bowman.\u201d At, or near the time of the execution of this lease, the agent of Mrs. Collins made a verbal contract with the lessees, that a steam heater should be placed in the office of the building so leased by \u201cKinsley & Mahler,\u201d at the cost of $350. For this heater the lessees were to execute their promissory notes to \u201c Kinsley & Mahler \u201d for $175 each, falling due respectively January 1, 1886, and January 1,1887, and as the said notes fell due, Mrs. Collins was to allow \u201cRhea, Smalley A Bowman\u201d a credit of $150 on each of the notes, to be applied on the lease as payment of rent. This lease was part of the assets of the firm of \u201cRhea, Smalley & Co.,\u201d and passed to appellants in their purchase of such assets as before stated.\nWhen the first of these notes matured, \u201c Martin, Smalley & Co.\u201d paid it to the payee thereof, and delivered the note with money sufficient to pay the rent for that month, $183.33, to the agent of Mrs. Collins for the rent due for that month, according to the terms of the lease. Shortly after this attempted payment, Mrs. Collins through her agent objected to receiving the note in part payment of the rent, and refused to apply $150 upon the lease, or any other sum, and repudiated the parol contract for the \u201c heater \u201d and payment therefor. She notified \u201c Martin, Smalley & Co.\u201d that she should not recognize them as her tenants under the lease, and soon thereafter commenced a suit against \u201c Rhea, Smalley & Bowman\u201d to recover rent under the terms of the lease to them.\nIn this suit she recovered a judgment, including costs, for $195.12, being for the month\u2019s rent supposed previously to have been paid by \u201c Martin, Smalley & Co.\u201d with the Kinsley & Mahler notes. By the terms of the lease, the lessees were prohibited from sublotting the leased premises or assigning the lease without the written consent of the lessor.\nSome time in the early summer of 1886, \u201c Martin, Smalley & Co.,\u201d gave Rhea $183.33 for another month\u2019s rent, and he paid it to the agent of the lessor, the lessor still refusing to recognize \u201c Martin, Smalley & Co.,\u201d as her tenants, or to accept the Kinsley & Mahler note, as payment upon the rent.\nUnder these circumstances the appellee obtained the Kinsley & Mahler notes, and of his own motion effected a settlement with Mrs. Collins, by which she permitted an assignment of the lease to \u201c Martin, Smalley & Co.,\u201d accepted that firm as her tenants, paid Rhea $225 in discharge of all her liability to \u201cRhea, Smalley & Co.,\u201d or \u201c Kinsley & Mahler\u201d on the steam heater contract, which, by the original agreement, was $300, as before shown, and Laving then settled and adjusted all matters in dispute as to the lease, and the tenancy of the then occupants of the leasehold, as well as the Kinsley & Mahler contract and notes, appellee made an assignment of the lease to appellants, and executed and delivered to them the following contract, viz.:\n\u201c Peoria, August 24, 1886.\n\u201c In consideration of Stephen Martin, J. B. Duncan and C. O. Peters accepting the transfer of lease on what is known as the Collins-Ballance building, Nos. 916 and 918 South Washington street, they were to pay nothing on said lease or the steam fixtures therewith attached, only the actual rent, which is one hundred and eighty-throe and thirty-three one hundredths dollars per month during the remaining term of said lease.\u201d\n(Signed) \u201c Elias Barber Rhea,\n\u201c For the firm of Rhea, Smalley & Bowman.\u201d\nWe think this release cuts out from appellee\u2019s claim, as stated by him, $195.12 for the judgments and costs for the rent of the building in the above release, paid in May, 1886; and the second item in said claim of $183.33, paid for the rent of the store on the lease from Mrs. Collins prior to the release to appellants of August 24, 1886, above stated.\nThe third item of $189.78 was withdrawn by appellee in the court below as improperly charged, thus leaving two small items of the account claimed, aggregating $28.10, and the $100 claimed paid to Cratty Bros., the appellant\u2019s liability for which, on the evidence in this record it is not necessary for ns to determine. The other points made in the case we refrain from discussing, as the view we have expressed must result in the reversal of the judgment of the court below. The judgment is reversed and cause remanded for such further action therein as the parties may be advised.\nlievened and, remanded.",
        "type": "majority",
        "author": "Upton, P. J."
      }
    ],
    "attorneys": [
      "Mr. Isaac C. Edwards, for appellants.",
      "Messrs. William S. Kellogg and James A. Cameron, for appellee."
    ],
    "corrections": "",
    "head_matter": "Stephen Martin et al. v. Elias B. Rhea.\nPartnership\u2014Retirement of Partner\u2014New Partnership\u2014Assumption of Liabilities by New Firm\u2014Payments by Retiring Partner\u2014Release by Him of New Firm.\nUpon suit brought by a former member of a defunct copartnership against a firm succeeding it in business and assuming its liabilities, to recover for payments made by him of certain liabilities of the old firm after the formation of the new one, this court holds that by a writing executed subsequently to the payments in question, plaintiff released the defendants from liability upon certain items named, and that no recovery can be had therefor.\n[Opinion filed December 16, 1889.]\nAppeal from the Circuit Court of Peoria County; the Hon. S. S. Page, Judge, presiding.\nMr. Isaac C. Edwards, for appellants.\nMessrs. William S. Kellogg and James A. Cameron, for appellee."
  },
  "file_name": "0636-01",
  "first_page_order": 630,
  "last_page_order": 634
}