By a written agreement between two parties, one acknowledged
that he was indebted to the other in the sum of $70,000 "over and
above all discounts and set-offs of every name and nature," and it
was stated that the latter was to take up and satisfy certain other
indebtedness of the former, and that the former had conveyed to the
latter a stock of goods, and store fixtures, notes, books and
accounts, and a piece of land, "with power forthwith at such times
and in such manner as" the latter should "deem best to convert the
said goods, . . . fixtures, notes, accounts and premises into
money, and apply the proceeds to the payment of said indebtedness,"
with interest, and also a certain farm, and it was agreed that if
the former should, within six months from date, pay said
indebtedness, the latter would reconvey the farm, but in default of
such payment, might foreclose "the certain mortgage comprised in"
the conveyance of the farm and the agreement. The conveyances
mentioned in the agreement were made, and the title to the piece of
land and the farm and the right to the indebtedness came into the
hands of the plaintiff, who sold the land and circuit court
Page 129 U. S. 602
brought this suit in equity against the original debtor for an
account of the amount clue on the security of the farm, and for a
foreclosure of the debtor's equity of redemption in the farm.
Held:
(1) The debtor could not go behind the agreement fixing the debt
at $70,000, because there was no sufficient evidence to impeach it
on the ground that his signature was obtained by fraud or duress or
without his full knowledge of its provisions and consent to its
terms.
(2) The debtor was entitled to be credited only with the sums
realized by the creditor from the sale of the personal property and
piece of land, and not with sums estimated by testimony as their
value at the time of the agreement.
(3) Under the statute of Illinois, where the transaction took
place, the creditor was entitled to interest on the $70,000 from
the expiration of the six months, and on the amount paid by him on
the other indebtedness from the time of paying it.
(4) The amount of a mortgage given by the creditor on the farm
was to be credited to the debtor and paid by the farm.
Section 868 of the Revised Statutes in regard to the exclusion
of a party to a suit as a witness, makes every party a competent
witness except in cases covered by the proviso to the section.
In equity. The case is stated in the opinion of the Court.
MR. JUSTICE BLATCHFORD 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]
Page 129 U. S. 603
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 forth with at such times and in such manner as he, said
Samuel H. Fox, shall deem best, to sell and collect and convert the
said goods, wares, merchandise, fixtures, notes, accounts, and
premises into money, and 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 H. 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 reconvey 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 H. 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 default thereto nor attempt, by injunction, bill in
equity, or in any other way to hinder or defeat the same. "
Page 129 U. S. 604
"Witness the 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. WILLARD 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 farm, 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 17th of February, 1877, Kate W. Fox brought a suit in
equity in the Circuit Court of the 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 1876,
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
Page 129 U. S. 605
furnish to I. Willard Fox goods in the way of his business, from
time to time, as he should need and they should be able; that the
price or value of the goods so furnished should be added to the
indebtedness so due from I. Willard Fox to Fox & Co., and the
former should apply the proceeds and avails of the business, as he
should realize the same, to the payment of such indebtedness, until
such future time as should be agreed upon by the parties at which
time he should turn over and deliver to Samuel H. Fox the
merchandise which should then be on hand, the store fixtures, and
the notes and accounts then uncollected, the proceeds and avails of
which should then be applied by Samuel H. Fox to wards the payment
of the indebtedness which should then be due from I. Willard Fox to
Fox & Co., and that the original agreement should in all other
respects remain binding.
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 H. 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, sometime before September 1, 1875, sold the La
Salle Street lot and realized from it about $14,000, which amount
was credited upon the indebtedness of I. Willard Fox to Fox &
Co.; that the said sums of $27,343.07, $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.
Page 129 U. S. 606
The bill further alleged that on or about September 1, 1875,
Samuel H. Fox and Henry W. Fox dissolved their partnership, and it
was agreed that the debt due from I. Willard Fox to Fox & Co.,
and all securities therefor, should thereafter belong to Henry W.
Fox; that Samuel H. Fox executed and delivered to Henry W. Fox a
deed in fee simple of the Lake Zurich farm, a description of which
by metes and bounds was given in the bill, and that there was due
to the plaintiff, as such executrix and devisee, from I. Willard
Fox $103,600, principal and 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 pretense 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
Page 129 U. S. 607
owed Fox & Co. the $70,000, but which did not state truly
such indebtedness, the amount being made up for a specific purpose
on the part of Fox & Co., without his consent; that in making
up the $70,000, interest was, without his consent, calculated for
several years back on all pretended balances apparently due to Fox
& Co. every three months during each year, thereby compounding
interest; that the amount of such interest was $20,000 or $30,000;
that after the agreement was signed, Fox & Co. allowed him to
go on in business, using his own name, for about the period of one
year, but the business was really theirs, and he turned over to
them his store and its contents, and all the debts due to him, on
or about February 20, 1869, the contents of the store being then of
the value of over $60,000; that in equity, under such arrangement,
that property ought to go to the cancellation of the indebtedness
stated in the agreement, and Fox & Co. ought to be charged in
the accounting with the property so delivered to them at its fair
value; that Fox & Co. pretend that the business was conducted
by him after February, 1869, and, because there were losses in it
to the amount of $15,000, he ought to suffer that loss, when the
business was really that of Fox & Co., and the adjustment ought
to be made at the time of the turning over of the store and its
contents, and of his property, to Fox & Co., and he ought to be
allowed to set off against any indebtedness of his to Fox & Co.
the amount of property so turned over to them; that he was the
owner in fee simple absolute of the land described in the bill;
that whatever debt is due to Fox & Co. is a lien upon the same,
including the La Salle Street lot, in the nature of a mortgage, and
the land ought in equity to be subjected to such lien, if any
indebtedness is proved to exist in favor of Fox & Co., and that
the plaintiff stands in no different relation to him, in regard to
such indebtedness, from that occupied by Fox & Co., and has
only the same rights and interest in and to such security which
Henry W. Fox or Fox & Co. had.
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
Page 129 U. S. 608
both the Lake Zurich farm and the La Salle Street lot are free
from any lien in favor of Fox & Co., or of the plaintiff. It
avers that the goods furnished by Fox & Co. to I. Willard Fox,
after the 20th of February, 1869, were the goods of Fox & Co.,
and he conducted the business for them; that the indebtedness held
against him by other persons, and which was settled by Fox &
Co., amounted to $24,000, and was settled for about $12,000 by Fox
& Co.; that he also owed the First National Bank about $15,000,
which was paid out of the proceeds of a loan of $6,000 made on the
La Salle Street lot, and the rest of it out of the collections,
etc., due to I. Willard Fox, and that, such indebtedness having
been so settled out of the La Salle Street lot and a portion of the
property turned over by him to Fox & Co., he ought to have the
Lake Zurich farm free from encumbrance because of the large surplus
which was left in the hands of Fox & Co. after paying such
outstanding debts. The answer also avers that he will rely upon the
statute of Illinois in regard to usury.
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 the 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
the indebtedness mentioned in the agreement as $16,000 was in fact
only $15,000, and was due to the First National Bank of
Chicago;
Page 129 U. S. 609
that, after the making of the agreement and the conveyance of
the La Salle Street lot to Samuel H. Fox, he, with the knowledge of
I. Willard Fox, raised by mortgage on that lot about $6,000, which
was handed over to I. Willard Fox, and paid by him on the
indebtedness to the bank, and that afterwards, and during the time
that he carried on the business after February 20, 1869, he paid to
the bank the remainder of the debt due to it out of the avails of
the business and of collections of the notes and accounts; that the
indebtedness estimated in the agreement at about $30,000, due to
other parties, was only about $24,000 or less, and Fox & Co.
compromised and paid it in full by paying altogether the sum of
about $10,971.39; that about the time that Samuel H. Fox mortgaged
the La Salle Street lot for $6,000, he effected an insurance upon
the improvements upon it for the same amount, and afterwards the
improvements were destroyed by fire, and the insurance was applied
in discharge of the mortgage; that on the 25th of September, 1875,
Samuel H. Fox conveyed the La Salle Street lot to Henry W. Fox for
the sum of $8,000, which amount was then credited upon the
indebtedness of I. Willard Fox to Fox & Co.; that the
$27,343.07, which was the value of the stock of goods, store
fixtures, notes, and accounts, turned over to Samuel H. Fox in
December, 1869, and the $8,000 realized from the sale of the La
Salle Street lot, is all that has ever been received by Fox &
Co. on the debt from I. Willard Fox to them, and that there was due
to the plaintiff at the time of the filing of the amended bill, on
account of such debt, about $60,000, besides interest.
The amended bill states the amount due to the plaintiff, as
executrix and devisee, from I. 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 original 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 referring
Page 129 U. S. 610
the cause to Mr. Henry W. Bishop as a master, to take proofs and
report the same to the court, together with the amount due to the
plaintiff.
On the 11th of February, 1880, an order was made modifying such
order of reference by directing the master to 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 bookkeeper and cashier of I. Willard Fox from May,
1867, till the summer of 1869, gave a 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 on 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 La Salle Street lot, the proceeds thereof to be
applied toward 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 conveyed the 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 from 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
Page 129 U. S. 611
the La Salle Street lot, and that at the same time, the
agreement of February 20, 1869, was executed by Samuel H. Fox and
I. Willard Fox, and the memorandum appended was executed by Samuel
H. Fox. The answer also avers that prior to 1857, Samuel H. Fox and
I. Willard Fox were partners in business in the manufacture of
glass in the State of New York; that I. Willard Fox sold out his
interest in the business to Henry W. Fox and retired; that
thereupon Samuel H. Fox and Henry W. Fox, who were brothers of I.
Willard Fox, became partners and conducted the business under the
name of Fox & Co., and I. Willard Fox removed to Illinois; that
the affairs of the firm in which I. Willard Fox was such partner,
and his business transactions with the new firm, had never been
settled; that in the year 1865, I. Willard Fox at the request of
Fox & Co., undertook to act as their agent for the sale of
glass in Chicago, and was to receive as compensation a certain
commission; that he received from them large amounts of glass, and
remitted the proceeds to them from time to time, and the business
was thus conducted until about the 1st of January, 1869, when he
became embarrassed, and, under a judgment and execution against him
in favor of the First National Bank of Chicago, his goods, and the
glass then on hand, belonging to Fox & Co., for sale on
commission, were seized, and the store was closed; that Samuel H.
Fox then came to Chicago and acted for Fox & Co.; that by
agreement with I. Willard Fox, Fox & Co. assumed the payment of
the debt to the First National Bank, and the goods were released,
and Samuel H. Fox, for Fox & Co., took possession of the goods
belonging to I. Willard Fox, and of those belonging to Fox &
Co.; that Samuel H. Fox also undertook to satisfy the other
creditors of I. Willard Fox; that the latter was unable to pay more
than fifty cents on the dollar, and, for the purpose of doing so,
and also of placing Fox & Co. in a situation whereby they could
make it appear to their creditors that they had large assets in
Illinois, Samuel H. Fox prepared a statement of the account of Fox
& Co. against I. Willard Fox showing an apparent indebtedness
of about $68,000, besides an apparent mortgage of $15,000 from him
to them, and demanded
Page 129 U. S. 612
of him that he should make an absolute conveyance of the Lake
Zurich farm and the La Salle Street lot; that he denied the
correctness of such account, and at first refused to make the
conveyances, but was induced to execute them, provided Samuel H.
Fox would execute the instrument of February 20, 1869, as a
condition of defeasance, and upon the verbal assurance of Samuel H.
Fox that Fox & Co. would not insist upon the payment of the
$70,000 named in it, or of any sum other than that which should be
found to be due from I. Willard Fox to Fox & Co., on a just,
fair, and equitable settlement; that the defendants asserted at the
time that there was nothing due on the transactions covered by the
account; that after the deeds and the agreement were made, Samuel
H. Fox, for Fox & Co., retained possession of the goods, store
fixtures, notes, and accounts, and conducted the business in the
name of I. Willard Fox until December, 1869, and during that time
received the proceeds arising from the collections of the notes and
accounts, as well as the goods; that at the time of such transfer
to Fox & Co., there was in the store glass belonging to them of
the value of over $30,000, besides other goods of over the value of
$30,000, and notes and accounts, good and collectible, to the
amount of about $15,000, belonging to I. Willard Fox; that during
the time the business was so being conducted by Fox & Co., in
1869, they paid the debt to the First National Bank, partly from
the proceeds arising from the conduct of the business and partly
from money borrowed upon the La Salle Street lot, which was
afterwards refunded to them by insurance money collected upon the
building standing upon the lot, and which had been destroyed by
fire; that they also paid to the other creditors of I. Willard Fox,
in full satisfaction of the debts due to them, $10,971.40; that
there had been no settlement of the matters between Fox & Co.
and I. Willard Fox since February 20, 1869; that there is nothing
due from him to Fox & Co.; that the La Salle Street lot was
conveyed, like the Lake Zurich farm, as security; that, if such lot
has been sold pending the suit, its purchaser has taken it with
notice of the equitable rights of the defendants; that they claim a
reconveyance of the Lake Zurich farm and the
Page 129 U. S. 613
La Salle Street lot upon the payment of the amount, if any, due
to Fox & Co. from I. Willard Fox, and that Samuel H. Fox is a
necessary party to the litigation.
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. R. Smith,
who had become the purchaser of the La Salle Street lot, and her
husband, Charles M. 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 possession 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 H. 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, and
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.
Page 129 U. S. 614
The cross-bill waives an answer on oath, and prays for an
account of all matters between Fox & Co. and I. Willard Fox,
and between Samuel H. Fox as surviving partner of Fox & Co. and
I. Willard Fox, and for a decree against Samuel H. Fox, as the
surviving partner of Fox & Co., for the amount that may be due
from him as such surviving partner to I. Willard Fox, and also for
a decree against Kate W. Goodwin, requiring her and her husband to
reconvey the Lake Zurich farm, and for a decree against Sarah E. R.
Smith requiring her and her husband to reconvey the La Salle Street
lot, and that, if it shall appear that there is any sum due from I.
Willard Fox to Samuel H. Fox as surviving partner of Fox & Co.,
or to Kate W. Goodwin, a decree be entered requiring a reconveyance
of such real estate on the payment of the amounts found to be due
from I. Willard Fox, and for general relief.
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 debt, and left Samuel H. Fox to close up the
old business, collecting what he could, and paying the debts; that
in the meantime, the new 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 $5,584.82 on his personal account,
Page 129 U. S. 615
besides between $7,000 and $8,000 which that firm had then
advanced or were to advance to him on security to be given on the
Lake Zurich farm; that the glass shipped to I. Willard Fox by Fox
& Co., in 1865, and for several years afterwards, was sold to
him, and was not shipped to him on commission; that in 1869, I.
Willard Fox was indebted to Fox & Co. in nearly $100,000 for
glass sold to him by them from 1865 to 1869; that there was no
dispute about the amount due to Fox & Co. by I. Willard Fox,
which was stated at $70,000 in the agreement of February 20, 1869;
that in fact, $20,000 more was due from him to them at that time,
but which was given up to him; that he did not then dispute the
amount due Fox & Co., and was not coerced into making the deeds
and agreement; that Samuel H. Fox did not give at the time the
reasons for making them alleged in the cross-bill; that the
accounts of Fox & Co. were examined, and the amount agreed
upon, and the deeds and agreement made, and six months allowed for
I. Willard Fox to redeem because he represented that he could do
thenceforth a prosperous business by regaining his stock and store;
that between January and December, 1869, Fox & Co. shipped to
him more than $12,000 worth of glass; that it was amicably agreed
in December, 1869, that the business should be closed; that $50,000
was not received from a sale of the stock of I. Willard Fox,
between January and December, 1869, and whatever sum was received
was received and used by him; that the stock of goods was turned
over to and taken possession of by Fox & Co., in December,
1869, and not before; that the best was done with it that could be
done, and they realized from it only $27,343.07, which had been
fully accounted for by glass furnished to and debts paid for I.
Willard Fox by Fox & Co. between January and December, 1869;
that such transaction did not materially reduce the amount due on
the agreement; that when the store was finally closed no part of
the glass was returned to Fox & Co., but the whole was sold,
and the total amount received is included in the sum before named;
that I. Willard Fox is not entitled to be credited with any more
money than the credit he has already received; that Sarah E. R.
Smith paid full value for the La Salle Street
Page 129 U. S. 616
lot, and is entitled to be protected as a
bona fide
purchaser for value without notice; that as Kate W. Goodwin has
offered, by her amended bill, to allow to I. Willard Fox, upon her
claim against him, the amount she received from the sale of the
lot, the title should not be drawn in question in the suit, and
that the lot was not involved in the pleadings at the time Sarah E.
R. Smith purchased it, and therefore she was not a purchaser of it
pendente lite.
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 $6,625 in cash,
which was its reasonable value, and paid it before the cross-bill
was filed, and before any notice that anyone 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 & Co.
Replications to the two answers to the cross-bill were filed on
the 5th of January, 1881.
On the 7th 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:
Page 129 U. S. 617
"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 result 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 a 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 be 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 sum 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
Page 129 U. S. 618
I. Willard Fox became embarrassed in business. The First
National Bank, his largest creditor, having obtained a judgment
against him, levied upon his stock of 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 except their
own at a compromise rate, 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 23 and November 5, 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 were 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 were made to I. Willard Fox, and formed part of his
stock, the remnant of which was turned over to him in December
following at which time he insists that the final adjustment was
made, while Ethan Allen Fox and I. Willard Fox, who were in charge
and remained there until the stock was all disposed of, swear that
the goods received after February were not billed to I. Willard Fox
and not 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 were consigned to Samuel H. Fox."
"A. St John Campbell and Robert B. Merritt, bookkeepers 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, who swears
that the change did not take place until December following. "
Page 129 U. S. 619
"The fact that an inventory was made of the stock in January
preceding and that none 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 1, 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 ($7,780.80) interest,
which it is claimed was erroneously charged, and which I deduct
from the amount stated 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
& Co. 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 the
contemplation of 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 period of this account, I find no
evidence
Page 129 U. S. 620
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 & Co. 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 percent
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 ($755.82) 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 ($8,443.30) 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, oils, etc., and fixtures, together with what is known as
the 'Merritt Mortgage,' amounting to a complete transfer of the
entire stock and business of I. W. Fox."
"Samuel H. 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
Page 129 U. S. 621
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. It 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 & Co., 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, Robert B. Merritt, the bookkeeper,
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 have 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 ($1,500)
(at which they were sold); and the Merritt mortgage, twenty-one
hundred and one and sixty-one hundredths dollars ($2,101.61)."
"If this testimony 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
absence of other preponderating evidence, these figures must be
adopted in estimating these credits, except in the
Page 129 U. S. 622
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 him 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 between 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 were realized the
gross sum of twenty-seven thousand three hundred and forty-three
and no hundredths dollars."
"An examination of this account, however, shows 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
Page 129 U. S. 623
forty-six and seventy one-hundredths dollars ($4,346.70), 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
" " " " glass account . . . . . . . 68,277.58
" " paid in settlement with creditors. . . . 10,971.30
----------
$81,172.41
Cr.
By interest included in glass
account improperly . . . . . . $ 7,780.80
Damages from breakage,
stained glass, and cutting
down (less $755.82, already
allowed), and estimated
at ten percent. . . . . . . . 8,443.30
Notes shown to have been
collectible. . . . . . . . . . 15,000.00
Paints, oil, 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 5th 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 York, in six years, with interest semiannually, and at
the rate of seven percent, and which is a subsisting lien upon said
property."
"It is agreed between the counsel that the full amount of
Page 129 U. S. 624
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 Fox,
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 26 and November
5, 1869."
"Third Exception. For that the said master improperly disallowed
the sum of $7,780.80 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 $8,443.30 damages from breakage, stained glass,
and cutting down, estimated at ten percentum."
"2. The sum of $15,000 for notes shown to have been
collectible."
"3. The sum of $12,000 for paints, oils &c., turned over to
Fox & Co."
"4. The sum of $1,500 for fixtures sold."
"5. The sum of $2,101.61 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
Page 129 U. S. 625
the firm of Fox & Co. with the whole 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 on 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 June, 1884, the master took testimony as to the matters so
referred to him, and on the 11th of July, 1884, he filed his
report, 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
feet front, to be $12,500. The report says:
"The testimony of the witnesses 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 in connection
with the property have been more extensive and of a more recent
date, and as the result of this I 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 Monroe, on the Lake Zurich farm, $15,059, being for
principal $12,000, and for interest $3,059.
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
Page 129 U. S. 626
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
Fox & Co., of February, 1869, 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 mortgage 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 is 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, and 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
Page 129 U. S. 627
$15,971.30; (2) that on the 20th of February, 1869, I. Willard
Fox and his wife conveyed to Samuel H. Fox, by deed, the Lake
Zurich farm and the La Salle Street lot; (3) that both of said
deeds were made to secure said indebtedness, and are in the nature
of a mortgage; (4) that on the 25th of September, 1875, Samuel H.
Fox conveyed the farm and the lot to Henry W. Fox, who took the
same with full knowledge of all the rights and equities of I.
Willard Fox in the premises, and to whom the debt was at the same
time transferred; (5) that on the 5th of November, 1875, Henry W.
Fox executed a deed of trust or mortgage on the Lake Zurich farm,
to secure the payment of $12,000, which had been borrowed by him
from Loring Monroe; (6) that there is now due on that loan $15,059;
(7) that on the 1st of June, 1876, Henry W. Fox died testate, and
by his will bequeathed and devised the indebtedness and the farm
and the lot to his wife, Kate W., who, since the commencement of
the suit, has married Charles S. Goodwin; (8) that on the 7th of
April, 1881 [1880], Kate W. Goodwin and her husband conveyed the La
Salle Street lot to Sarah E. R. Smith, wife of Charles W. Smith,
who acquired no better title or right, as against I. Willard Fox,
than Kate W. Goodwin had, and (9) that there had been paid on the
La Salle Street lot, for taxes, $565.33, which is chargeable to I.
Willard Fox. 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 rate of six percent 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 encumbrance 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 lands 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,
$1,477.63 by the 1st of November, 1884, with interest
Page 129 U. S. 628
thereon at the rate of six percent per annum, and, in default of
such payment, the master should sell "the said lands," and I.
Willard Fox and his wife should be barred and foreclosed of all
equity of redemption "in said lands and lot," and, in case I.
Willard Fox should pay the $1,477.63, he should also save and keep
harmless the estate of Henry W. Fox from all liability on the debt
to Loring Monroe, and should assume the payment of the indebtedness
secured by the Monroe mortgage; (3) that in case either the
$16,536.63 or the $1,477.63 should be paid, Kate W. Goodwin and her
husband should convey, on or before November 1, 1884, to I. Willard
Fox "the lands first hereinbefore described," subject to the Loring
[Monroe] encumbrance, and Sarah E. R. Smith and her husband should
convey to I. Willard Fox the La Salle Street lot; (4) that in case
of a failure to make such conveyances, or either of them, the
master should make them on behalf of Kate W. Goodwin and her
husband, and of Sarah E. R. Smith and her husband, respectively;
(5) that Sarah E. R. Smith might, if she elected, pay into court,
or to I. Willard Fox, $11,500, with interest at the rate of six
percent from July 29, 1884, by or before October 15, 1884, the sum
of $11,500 being found by the court "to be the present cash value"
of the La Salle Street lot, and that, in case of such payment,
Sarah E. R. Smith should be decreed to hold the lot thenceforward
discharged from all equity of redemption of I. Willard Fox and all
persons claiming under him. The decree charged I. Willard Fox with
the costs of the cause.
On the 29th of 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 as 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 as it relates to the item of
$8,443.30, damages for breakage of glass; (5) that the finding of
the master as to the value of the glass, paints, oils, store
fixtures, and notes and accounts, turned over to Fox & Co. by
I. Willard Fox, be modified and changed,
Page 129 U. S. 629
so that the value of the same be fixed at the sum of $65,000,
instead of $60,601.60, as found by the master; (6) that the fifth
exception be overruled, and (7) that the reports and findings of
the master, except as so overruled or modified, be confirmed.
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 anyone for her, of the Lake Zurich farm from the
mortgage to Loring Monroe; that Sarah E. R. Smith had not paid the
$11,500, with interest; that there had been paid into court, by and
before November 1, 1884, the $1,477.63, 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. R. 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, and 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
deeds, 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. R. Smith and her husband perfected an appeal to this Court
from the decree in the original suit and the cross-suit.
Page 129 U. S. 630
It is assigned here by the appellants for error that the circuit
court erred in overruling the first exception to the report of the
master of November 26, 1881, insofar as it relates to the
competency of I. Willard Fox as a witness; in overruling the second
exception to that report; in refusing to sustain the fourth
exception to that 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; in failing and
neglecting to allow interest upon the sum due to the plaintiff in
the original bill subsequently to February 20, 1869; in overruling
the first, second, and third exceptions to the master's report of
July 11, 1884, and in confirming that report; in overruling the
fourth exception to that report, and in deducting by its decree the
amount of the Monroe mortgage from the amount due to the plaintiff
in the original bill.
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 nowhere
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
Page 129 U. S. 631
testator, intestate, or ward, unless called to testify thereto
by the opposite party or required to testify thereto by the court.
In all other respects, the laws of the state in which the court is
held shall be the rules of decision as to the competency of
witnesses in the courts of the United States in trials at common
law, and in equity and admiralty."
This section only provides that in actions by or against
executors 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 testator unless called
to testify thereto by the opposite party or required to testify
thereto by the court. Subject to this restriction, the section
provides that in the courts of the United States, no witness shall
be excluded in any civil action because he is a party to, or
interested in, the issue tried. I. Willard Fox, although a party to
and interested in the issues tried in these suits, cannot be
excluded as a witness on that account unless the case is one
covered by the proviso. The last clause of the section, which makes
the laws of the state the rules of decision as to the competency of
witnesses in the courts of the United States in trials in equity,
"in all other respects," means "in all other respects" than those
provided for in so much of the section as precedes the word
"
provided," and does not qualify the clause which forms
the proviso.
Potter v. National Bank, 102 U.
S. 163.
In the present case, although Kate W. Goodwin was executrix of
the will of her deceased husband, Henry 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 I. 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.
Page 129 U. S. 632
Before considering any of the other questions raised in the
case, it is proper to determine whether either party can go behind
the statement of existing indebtedness set forth in the agreement
of February 20, 1869. That agreement was made between I. Willard
Fox and Fox & Co., and is signed by Samuel H. Fox on behalf of
Fox & Co. In it, both parties state that I. Willard Fox is
indebted to Fox & Co. in the sum of $70,000, "over and above
all discounts and set-offs of every name and nature." It leaves
uncertain the amounts paid or to be paid by Fox & Co. to cancel
the other debts of I. Willard Fox, but it agrees upon the sum of
$70,000 as the then existing indebtedness of I. Willard Fox to Fox
& Co. It goes on to speak of that indebtedness as "said
original indebtedness," and the supplemental paper signed by Samuel
H. Fox speaks of "said debt of seventy thousand dollars." It must
be held that the parties to the agreement deliberately fixed upon
that sum of $70,000, because the agreement states that in making it
up the parties took into consideration "all discounts and set-offs
of every name and nature." There is no sufficient or satisfactory
evidence to impeach the agreement, as respects I. Willard Fox, on
the ground that his signature to it was obtained by fraud or duress
or without his full knowledge of its provisions and consent to its
terms.
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 $8,443.30 for such
damages, and also added to the credit side of the account of I.
Willard Fox $7,780.80 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
$8,443.30, and the court sustained the exception and excluded that
item. She also excepted to the disallowance to herself of the
$7,780.80, and the court sustained that exception also. This was in
effect a ruling by the court that the parties could not go behind
the
Page 129 U. S. 633
settlement of February 20, 1869, as to the $70,000. As the heirs
and representatives of I. Willard Fox have not appealed from the
decree, the action of the court in sustaining the exceptions as to
those two items must, of course, stand. But it is rendered
immaterial by the general view we take of the case.
It is contended by the appellants that the circuit court erred
in overruling the second exception to the master's report, which
was that the master refused to allow, in favor of Kate W. Goodwin
and against I. Willard Fox, the sum of $12,999.63 [$12,999.69], the
same being for the amount of glass shipped to I. Willard Fox by Fox
& Co., and received by him, between March 26, 1869, and
November 5, 1869. The date of March 26, 1869, is stated by the
master in his report to be March 23, 1869. The master disallowed
that claim of Kate W. Goodwin on the view that, in February, 1869,
and before any of such glass was shipped, all the business and
property were turned over to Fox & Co., and they afterwards
managed and controlled it; that the glass was not charged by Fox
& Co. to I. Willard Fox as sold to him, but that the books of
Fox & Co. show that it was consigned to Samuel H. Fox. 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 H. 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 H. 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. Willard Fox the glass they sent him afterwards, prior to
Page 129 U. S. 634
the final discontinuance of the business in December, 1869. The
weight of the evidence is also to the same effect. The master
therefore, on his view of the case, properly refused to allow in
favor of Kate W. Goodwin the $12,999.69, and the exception to such
disallowance -- being the second exception to the master's report
-- was properly overruled by the court. But as this $12,999.69 of
glass was represented by notes and accounts finally turned over by
I. Willard Fox to Fox and Co., and the proceeds of which form part
of the $27,343.07 credited to I. Willard Fox in the account
hereinafter contained, it is proper to put the $12,999.69 on the
debit side of that account.
The master disallowed the $7,780.80 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 &
Co.; 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 &
Co. 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 Kate W. Goodwin, by her third exception to the
master's report, objected to his disallowance of the $7,780.80 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
Page 129 U. S. 635
must stand; but it is made of no importance by the disposition
we make generally of the case. If interest were properly chargeable
against I. Willard Fox on the items of his account prior to
February 20, 1869, it must be regarded as having been included in
the $70,000.
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 for 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, Rev.Stat. 1874, which has
been the law of Illinois since 1845, provides as follows:
"Creditors shall be allowed to receive at the rate of six (6)
percentum 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 of that date, and like
interest from the proper dates on the
Page 129 U. S. 636
amounts paid by Fox & Co. to take up and satisfy the other
indebtedness of I. Willard Fox, from the time they paid such
several amounts, and on the other debit items in the skeleton
account hereinafter set forth, and that I. Willard Fox is entitled
to be allowed like interest from the proper dates on the credit
items in that account.
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 such 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., $1,500 for fixtures sold, $2,101.61 for the
Merritt mortgage, and $30,000 for glass returned at the date 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
$65,000. 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 . . . . . . . . . . . . . $15,971.30
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
LaSalle Street lot, making a total of $16,536.63, with which sum,
and interest thereon at the rate of 6 percent per annum from the
date of the decree, July 29, 1884, it charged I. Willard Fox. The
court did not charge to I. Willard
Page 129 U. S. 637
Fox the $1,923.53 found by the master to have been due on his
individual and personal account, nor did it credit him with the
$7,780.80 item of interest, or the $8,443.30 for damages for
breakage of glass, and for "stained" glass and cutting down glass
into smaller sizes. The debit items against I. Willard Fox, which
the court put at $80,971.30, the master had put at $81, 172.41.
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
$65,000. 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 of 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 & Co., through I. Willard Fox as
their agent, with the stock of goods turned over the 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 not chargeable with the value of the
property turned over in 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,
Page 129 U. S. 638
or at any other time, aside from its proceeds. Therefore all the
testimony as to the value of the property in February, 1869, must
be rejected. There is no evidence to show that Fox & Co.
received any proceeds which they did not credit.
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 W. 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. Goodwin,
$1,477.63, 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 any 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 and 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, and 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. Goodwin
Page 129 U. S. 639
and Sarah E. R. Smith with $11,500 as "the present cash value"
of the La Salle Street lot, committed an error. By the agreement of
February 20, 1869, the conveyance of the lot to Samuel H. Fox, for
Fox & Co., was absolute and unconditional, with no right of
redemption attached to it, and it was in the same category with the
personal property, and not merely subject to a lien, as was the
Lake Zurich farm. It was conveyed to Samuel H. Fox, in February,
1869, by an absolute deed, and he and his wife conveyed it to Henry
W. Fox on the 25th of September, 1875, for $8,000. Under the
agreement, Fox & Co. were not bound to apply the value of the
lot or its proceeds until it was sold. By the amendment made to the
bill November 13, 1880, Kate W. Goodwin offered to credit to I.
Willard Fox the amount for which she had sold the lot. She had sold
it on the 27th of April, 1880, to Sarah E. R. Smith, for $6,625.
But I. Willard Fox was entitled to a credit as of the 25th of
September, 1875, of the $8,000 for which it was then sold to Henry
W. Fox, and which the evidence shows was the full value of the lot
at that time, and that credit must be allowed. That being done, of
course, Sarah E. R. Smith will retain the lot, and thus the appeal
of herself and her husband in this case is disposed of. The decree
provided that she might pay into the court $11,500, with interest,
as "the present cash value" of the lot, and that in case she should
do so, she should hold the lot free from all equity of redemption
by I. Willard Fox and all persons claiming under him; but that
otherwise she and her husband should convey the lot to I. Willard
Fox, or, on their failure to do so, the master should execute the
conveyance instead. All the provisions of the decree in regard to
Sarah E. R. Smith and her husband were erroneous, and her title to
the La Salle Street lot must be confirmed.
On the foregoing views, we are of opinion that the proper mode
of stating the account between the parties is as follows:
Page 129 U. S. 640
I. Willard Fox, in Account with Fox & Co.
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
-----------
$100,970.99
Cr.
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. . . . . . . . . . . . . . . 27,343.70
---------- $ 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
Page 129 U. S. 641
properly overruled. To this end, the amount of $12,000 as the
principal of the mortgage to Monroe on the Lake Zurich farm, with
the interest due upon it, must be deducted from the balance found
due to Fox & Co., on the principle of the above account. In
that event, the Lake Zurich farm will be charged with, and will
pay, the amount due on such mortgage. 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 & Co. for the
$12,999.69 of glass so furnished.
It was proper that I. Willard Fox should pay the costs of the
circuit court.
The decree of the circuit court is reversed, and the case is
remanded to that court with a direction to take such further
proceedings as may be in accordance with law, and not inconsistent
with this opinion.