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tract of the parties. At the close of the evidence defendants offered to the court a proposition to be held as the law of the case, as follows:

6. "That said letter is the only agreement or promise on the part of the said firm of Crosby, MacDonald & Co., or the surviving partners thereof, tending to show any promise to pay to the plaintiff the said sum of $14,000 borrowed from her by the said Thomas G. Crosby, and that said letter was not and is not a promise by the said Crosby, MacDonald & Co., or the survivors thereof, to pay to the said plaintiff the said sum of $14,000 as an indebtedness of said firm, and, therefore, the plaintiff cannot recover said sum against the said defendants, or either of them."

The letter is as follows:

"Mrs. Majorie H. Crosby, City:

"CHICAGO, Dec. 2, 1891.

"DEAR MADAM-Regarding the mortgage of $14,000 on house and land at Lake View, the proceeds of which are to go into the hands of this firm to Capt. Crosby's credit, we beg to say that it is understood and agreed that Capt. Crosby's interest as a member of the firm remains unaffected by his illness; and he also wishes us to say to you, that even in case of his death his interest shall remain until the above mortgage be paid off. . "Yours faithfully, CROSBY, MACDONALD & Co."

This letter, when considered in connection with other evidence offered on behalf of plaintiff, does not bear the construction sought to be placed upon it by plaintiffs in error, nor does it purport to be the whole contract under which Mrs. Crosby claims to have made the loan, and this proposition was properly refused.

Upon the trial the witness H. M. Robinson was asked, "Now, what do you know of Capt. Crosby investing the profits of the firm that he drew out of it, in real estate, in the name of Mrs. Crosby, between the years 1886, and December, 1891?" To that question an objection was interposed and sustained by the court, and this is assigned for error. We are unable to see upon what principle such testimony was competent. The mere fact that plaintiff's

husband may have invested his part of the profits of the firm between the years 1886, and December, 1891, in real estate, certainly could not prevent the plaintiff from recovering in this action. It will be seen that the question is not limited to the real estate claimed by plaintiff to have been mortgaged by her, nor is there any suggestion by counsel that the investment of money between those years, even if in the real estate mortgaged in the name of Mrs. Crosby, would make it any less her separate property. It is true, in actions of assumpsit equitable defenses may be interposed; but there is nothing here to show that the question propounded to the witness tended in any way to prove an equitable defense. There is no claim that the property was placed in the wife's name fraudulently.

The foregoing are the only points raised in the first brief of plaintiffs in error filed here.

In the additional arguments it is contended that the testimony of Nellie Strong as to the transaction between Thomas G. Crosby and his wife, with reference to the making of this loan, was incompetent,-first, because it was hearsay; and second, because the statements of Mr. Crosby to his wife in negotiating this loan were beyond his power to make, as a member of the partnership. The declaration charges that plaintiff was induced to mortgage her own property to raise money for the firm. Nellie Strong says: "I heard talk between Thomas G. Crosby and his wife prior to December 2, 1891, about borrowing money. He said the firm was to receive the money, and that the firm could pay it off in one year. This was in the fall of 1891. The first conversation was two or three days before the loan was made." On crossexamination she says: "I heard the first conversation between him and Mrs. Crosby about this loan when they first started to get it. It was in the fall of 1891. We were at the breakfast table in the first place, upon Wilson avenue. When he came down to the table she ap

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parently was going on with the conversation that they had had before, and he says, 'You will have to get $10,000 on the Graceland.' It was shortly before the mortgage was given,-four or five days, I should think. He addressed himself to Mrs. Crosby. He says once to her, 'You need not be afraid to loan this, because the firm can pay it off."" This evidence was introduced to show what the negotiations were between Mr. Crosby, who, it is insisted, was acting for his firm, and Mrs. Crosby, from whom the money was to be obtained. What was said between them in arriving at an understanding and agreement as to the making of the loan, constituted, in part, the contract between the parties which is the basis of this action of assumpsit. The testimony of Nellie Strong to the foregoing conversations is not hearsay, but it is direct evidence tending to prove the contract,i. e., what was said by the parties on either side of the transaction when the loan was being negotiated. Whether this witness' testimony is incompetent because the statements of Mr. Crosby were unauthorized depends upon whether he was acting within the scope of the partner.ship in undertaking to negotiate this loan. The scope of the business of partnership does not appear to have been so limited that the borrowing of money was beyond the purpose of the partnership.

It is said that Nellie Strong did not understand the conversations between Mr. Crosby and his wife because of an impediment in the speech of Mr. Crosby, and that her knowledge of what was said was from Mrs. Crosby alone, who detailed the conversation to her. But this finds no substantial support in the evidence. The witness says that as to one statement she did not quite understand, and Mrs. Crosby repeated it to her; but she also says this was in the immediate presence of both Mr. and Mrs. Crosby.

It is said the trial court committed error in admitting the testimony of Mrs. Crosby as to conversations between

herself and her husband regarding this transaction. From a careful examination of the record we find the only conversations testified to by her, between herself and her husband, had no bearing upon the main question at issue, -that is, whether the loan was from her to him or from her to the firm, and hence no error resulted from admitting that evidence.

Plaintiffs in error also contend that even if it should be found that Thomas G. Crosby, on behalf of his firm, promised that the money should be re-paid to defendant in error, yet that promise was not within his implied authority as a member of the firm. This contention has been answered by what has been already said. It is assumed that the only promise to re-pay it was made by Mr. Crosby alone; but the evidence tends to show that what he did was with the knowledge and sanction of the other members of the firm and the money was received by the firm.

It is insisted that the court erred in sustaining the demurrer to the pleas setting up the Statute of Frauds. The first plea is, that the promise declared upon was not to be performed within one year; and the second, that whatever promise was made by the defendants was a promise to answer for the debt of Mr. Crosby. As to the first, the demurrer was properly sustained, on the ground that the contract declared upon was fully and completely performed upon the part of the plaintiff, and nothing remained to be done by the defendants but to pay the money. (Curtis v. Sage, 35 Ill. 22.) We do not understand, under the rule in this State, that the Statute of Frauds can be interposed as a defense where the contract is fully' performed on the part of the plaintiff,-in other words, the Statute of Frauds cannot be availed of for the purpose of perpetrating a fraud. As to the second plea, the demurrer was properly sustained, for the reason that it is in no way responsive to the allegations of the declaration. The declaration is, that the promise was made by

the firm to plaintiff; and if she failed to establish that allegation she could not, of course, recover. The defendants could not, by a plea of this kind, raise a collateral issue on the case.

The judgment of the Appellate Court will be affirmed. Judgment affirmed.

GEORGE R. NICHOLS et al.

v.

THE CITY OF CHICAGO.

Opinion filed October 24, 1901.

SPECIAL ASSESSMENTS-ordinance should specify size and quality of flat stones for curb bedding. An ordinance for curbing and paving a street should specify the size and quality of the "flat stones" upon which the curb-stones are to be bedded.

WRIT OF ERROR to the County Court of Cook county; the Hon. ORRIN N. CARTER, Judge, presiding.

WILLIAM F. CARROLL, for plaintiffs in error.

Per CURIAM: This is a special assessment proceeding brought by the defendant in error for curbing with curbstones, grading and paving West Madison street from Paulina street to Western avenue. The ordinance, under which the special assessment was levied, does not specify the size or quality of the flat stones, on which the curb-stones are to be bedded, and is objected to upon that ground. This objection was sustained in Lusk v. City of Chicago, 176 Ill. 207, and Davidson v. City of Chicago, 178 id. 582.

For the reasons stated in the above mentioned cases, the judgment of confirmation here is reversed, and the cause is remanded for further proceedings in accordance with the views expressed in those cases.

Reversed and remanded.

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