{
  "id": 5254109,
  "name": "James P. Monahan v. Michael Lovece and Kittie Lovece",
  "name_abbreviation": "Monahan v. Lovece",
  "decision_date": "1897-04-15",
  "docket_number": "",
  "first_page": "69",
  "last_page": "72",
  "citations": [
    {
      "type": "official",
      "cite": "70 Ill. App. 69"
    }
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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  "cites_to": [
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      "reporter": "N.Y.",
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      "reporter": "Iowa",
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        2326062
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    {
      "cite": "87 Ind. 1",
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    {
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      "reporter": "Ill.",
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        5288468
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      "case_paths": [
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    {
      "cite": "48 N. H. 254",
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      "reporter": "N.H.",
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        1050234
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  "analysis": {
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    "char_count": 5250,
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  "last_updated": "2023-07-14T18:32:17.018382+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "James P. Monahan v. Michael Lovece and Kittie Lovece."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Waterman\ndelivered the opinion of the Court.\nIt appears from the complainant\u2019s bill that they purchased from appellant the furniture, fixtures, contents and good will of a saloon at 507 South Clark street, Chicago. That they gave therefor three vacant lots in Indiana, at a valuation of three hundred dollars, and promissory notes of the complainants for the sum of $1,200, making in all $1,500, securing the same by a chattel mortgage on the contents of said saloon.\nThat the appellant, when said notes and mortgage were executed, verbally agreed that he would go out of the saloon business in the neighborhood of 507 South Clark street, and would at no time engage in business anywhere in that vicinity; that he was going to move to Hew York, and that if he should at any time return to Chicago and there enter into the saloon business, he would pay the complainants for the said saloon, furniture, fixtures, etc., three times the amount the complainants had paid him.\nThat the leading consideration for the purchase of said saloon was this promise by appellant; that in violation thereof he has returned to Chicago and has gone into the saloon business at 515 South Clark street, and thereby so injured the business of complainants that the receipts of their said saloon have dwindled from twenty to five dollars per day. That the furniture, fixtures and contents of said saloon purchased by complainants were not worth, when bought as aforesaid, over $500, and are not now of a greater value than that sum. That the complainants have paid all of said notes except certain ones amounting to $450, the consideration of which, complainants allege, has by reason of appellant\u2019s said violation of his promise, wholly failed. Complainants therefore ask that said notes be canceled; but do not offer to rescind the contract of sale.\nConceding that the evidence sustains the allegations of the complainants\u2019 bill as to a promise by appellant not to engage in the saloon business in the vicinity of South Clark street, are the complainants entitled to a decree for the cancellation of the unpaid notes ? There is neither allegation nor evidence that the entire consideration of these, or any particular notes, was a promise by appellant not to engage in the saloon business on South Clark street.\nThe sale of the saloon property, business and good will, was a consideration for each of the notes.\nThere has clearly not been, as alleged, a total failure of consideration of the unpaid notes. Nor has there been a partial failure.\nThe bill alleges that a part of the consideration for the notes was the verbal promise by appellant not to engage in the saloon business in the vicinity of South Ciarle street, and that if he should do so, that he would pay to the complainants for the said saloon sold to them three times what they had paid to him therefor.\nThe promise is alleged to have been a consideration; not the fulfillment thereof; and, as alleged, the sum to be paid by appellant, if he violated this undertaking, was fixed.\nThe promises to pay the notes, made by the complainants and the promise made,by appellant, are independent agreements.\nIf complainants do not pay the notes appellant can not for that reason rescind the sale of the saloon.\nComplaints have received and are yet in possession of the contents of the saloon, and have not offered to surrender anything received by them.\nThe promises of each being independent, mutual agreements,' appellant has his remedy on the contract running to him, and complainants on the promise running to them. Clough v. Baker, 48 N. H. 254, is much like the present case.\nThe non-performance of an agreement forming the consideration of a note is not a failure of consideration unless the agreement be rescinded. 2 Randolph on Commc\u2019l Paper, Sec. 553; Jones v. Council Bluffs Bank, 34 Ill. 313-319; Rhodius v. Welz, 87 Ind. 1; Simpson Centenary College v. Bryan, 50 Ia. 293; Morrison v. Jewell, 34 Maine, 146, Moggridge v. Jones, 14 East, 486; Wilson v. Dean, 74 N. Y. 531.\nThe decree of the Superior Court is reversed, and the cause remanded, with directions to the Superior Court to dismiss appellees\u2019 bill for want of equity, and to enter a decree in accordance with the prayer of the cross-bill filed by appellant. Reversed and remanded with directions.",
        "type": "majority",
        "author": "Mr. Justice Waterman"
      }
    ],
    "attorneys": [
      "Masterson & Haft, attorneys for appellant.",
      "Ho appearance for appellee."
    ],
    "corrections": "",
    "head_matter": "James P. Monahan v. Michael Lovece and Kittie Lovece.\n1. Consideration\u2014Non-Performance of Agreement as Failure of.\u2014 The non-performance of an agreement forming the consideration of a note is not a failure of consideration unless the agreement be rescinded.\nBill to Cancel Notes.\u2014Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding.\nHeard in this court at the March term, 1897.\nReversed and remanded, with directions.\nOpinion filed April 15, 1897.\nStatement of the Case.\nThis was a bill filed by the appellees to cancel certain notes aggregating \u00a7450, on the ground that the consideration thereof had failed. The appellant herein, defendant below, answered the bill and filed his cross-bill to foreclose a chattel mortgage securing the notes. The court entered a decree ordering that the notes be surrendered for cancellation.\nMasterson & Haft, attorneys for appellant.\nHo appearance for appellee."
  },
  "file_name": "0069-01",
  "first_page_order": 69,
  "last_page_order": 72
}