party is suing or defending as executor, guard- | French, 12 Gray, 453; Goss v. Austin, 11 Allen, an, devisee or heir, as to any matter occurring | 525. before the death of the testator or intestate. Merrill v. Atkin, Stevens v. Hay, Langley v. Dodsworth, Crane v. Crane, Marshall v. Peck and Bragg v. Geddes, supra.

Samuel H. Fox and I. Willard Fox, this twen- | during that period, Fox & Co. furnished to
tieth day of February, A. D. 1869.

"Samuel H. Fox. [Seal.]
"I. Willard Fox. [Seal.]

him merchandise, in the way of his business,
to the amount of about $24,000; that, at the ex-
piration of that period, he, in pursuance of
Samuel H. Fox the stock of goods, store fixt-
that agreement, turned over and delivered to

"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 indebt-ures, notes and accounts, then on hand, of the
edness secured by said mortgage having become credited to him and applied on his indebted-
value of $27,343.07, which amount was then
merged in said debt of seventy thousand dol-ness then due to Fox & Co.; that, after the

lars.

"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 1. 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.

making of the last mentioned agreement, and
while I. Willard Fox was so carrying on busi-
ness, he paid out of its avails, upon his indebt-
edness to Fox & Co., the sum of about $10,000;
that Samuel H. Fox, some time before Septem-
ber 1, 1875, sold the La Salle Street lot and re-
alized 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, was 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 indebted-
ness, about $70,657, besides interest.

The bill further alleged that, on or about [606]
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 Sam-
uel H. Fox executed and delivered to Henry
W. Fox a deed in fee simple of the Lake Zu-
rich 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, prin-
cipal 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.

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 II. Fox; that Fox & Co., who were manufacturerers of glass, in the State of New York, 605] should advance and 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 On the 21st of April, 1877, I. Willard Fox future time as should be agreed upon by the and his wife put in an answer to the bill. It parties, at which time he should turn over and denies the indebtedness of $70,000, but admits deliver to Samuel H. Fox the merchandise that a paper drawn up at the instance of Samwhich should then be on band, the store fixtuel H. Fox stated the indebtedness at that ures, and the notes and accounts then uncol- amount. It also avers that, prior to February lected, the proceeds and avails of which should 20, 1869, I. Willard Fox had been engaged at then be applied by Samuel H. Fox towards the Chicago for several years in selling paints, oils payment of the indebtedness which should and window glass; that during that time he then be due from I. Willard Fox to Fox & Co.; had sold for Fox & Co. large quantities of and that the original agreement should in all window glass made by them, such sale being other respects remain binding. 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 52

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,
129 U. S.
U. S., BоOK 32.

807

that he will rely upon the Statute of Illinois in
regard to usury.

[607] apparently made to say that he owed Fox &
Co. the $70,000, but which did not state truly
such indebtedness, the amount being made up A replication was filed to this answer.
for a specific purpose on the part of Fox & Co., On the 26th of October, 1877, the plaintiff
without his consent; that, in making up the filed an amended bill, under an order made on
$70,000, interest was, without his consent, cal- that day, giving her leave to do so, and requir
culated for several years back on all pretended ing the defendants to answer within thirty days.
balances apparently due to Fox & Co., every The amended bill is a full and complete bill in
three months during each year, thereby com- itself. It contains mainly the same averments
pounding interest; that the amount of such in- as the original bill, but has some variations and
terest was $20,000 or $30,000; that after the additions. One addition is a statement of the
agreement was signed, Fox & Co. allowed him contents of the memorandum signed by Samuel
to go on in business, using his own name, for H. Fox, appended to the agreement, which was
about the period of one year, but the business not contained in the original bill. There is also
was really theirs, and he turned over to them added a statement that Samuel H. Fox did, on
his store and its contents, and all the debts due the 5th of October, 1869, release and discharge
to him, on or about February 20, 1869, the con- of record the mortgage so held by him on a
tents of the store being then of the value of over portion of the Lake Zurich farm. It states the
$60,000; that, in equity, under such arrange amount of goods furnished by Fox & Co. to I.
ment, that property ought to go to the cancel- Willard Fox, during the time from February
lation of the indebtedness stated in the agree-20, 1869, until some time in December, 1869,
ment, and Fox & Co. ought to be charged in at $12,999.64, instead of $24,000; and that the
the accounting with the property so delivered property, amounting to $27,343.07, was turned
to them, at its fair value; that Fox & Co. pre-over and delivered to Fox & Co. in December,
tend that the business was conducted by him 1869, instead of in February, 1870. It also states
after February, 1869, and, because there were that the indebtedness mentioned in the agree-
losses in it to the amount of $15,000, he ought ment as $16,000 was in fact only $15,000, and
to suffer that loss, when the business was really was due to the First National Bank of Chicago;
that of Fox & Co., and the adjustment ought that, after the making of the agreement and the
to be made at the time of the turning over of conveyance of the La Salle Street lot to Samuel
the store and its contents, and of his property, H. Fox, he, with the knowledge of I. Willard
to Fox & Co., and he ought to be allowed to Fox, raised, by mortgage on that lot, about
set off against any indebtedness of his to Fox $6,000, which was handed over to I. Willard
& Co. the amount of property so turned over Fox and paid by him on the indebtedness to the
to them; that he was the owner in fee simple bank, and that afterwards, and during the time
absolute of the land described in the bill; that that he carried on the business after February
whatever debt is due to Fox & Co. is a lien upon 20, 1869, he paid to the bank the remainder of
the same, including the La Salle Street lot, in the debt due to it, out of the avails of the busi-
the nature of a mortgage, and the land ought ness and of collections of the notes and ac-
in equity to be subjected to such lien, if any in- counts; that the indebtedness estimated in the
debtedness is proved to exist in favor of Fox & agreement at about $30,000, due to other
Co.; and that the plaintiff stands in no differ- parties, was only about $24,000 or less, and Fox
ent relation to him, in regard to such indebted- & Co. compromised and paid it in full by pay-
ness, from that occupied by Fox & Co., and ing altogether the sum of about $10,971.39;
has only the same rights and interest in and to that, about the time that Samuel H. Fox mort-
such security which Henry W. Fox or Fox & gaged the La Salle Street lot for $6,000, he
Co. had.
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 in-
debtedness 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 ac-
counts, turned over to Samuel H. Fox in De-
cember, 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 answer asks that an accounting may be
had between the parties before a master, and
avers that all indebtedness from I. Willard Fox
[608] to Fox & Co. has been paid; and that 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 fur-
nished 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 set-
tled 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 in- The amended bill states the amount due to
debtedness having been so settled out of the La the plaintiff, as executrix and devisee, from I.
Salle Street lot and a portion of the property Willard Fox, at about $100,000, principal and
turned over by him to Fox & Co., he ought to interest, instead of $103,600. It waives an an-
have the Lake Zurich farm free from incum-swer on oath, and its prayer is the same as that
brance, because of the large surplus which was of the original bill, and it does not treat the La
left in the hands of Fox & Co. after paying Salle Street lot as subject to a lien in favor of
such outstanding debts. The answer also avers the plaintiff.

[609]

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 610] made referring 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 book keeper 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.

glass in Chicago, and was to receive as com pensation 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 first 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 situtaion whereby they could make it appear to their creditors that they had large assets in Illinois, In July, 1880, the cause was heard on plead- Samuel H. Fox prepared a statement of the ings and proofs; but before any decision was account of Fox & Co. against I. Willard Fox, made, and on November 13, 1880, the plaintiff, showing an apparent indebtedness of about by leave of the court, amended her bill by in $68,000, besides an apparent mortgage of $15,serting an averment to the effect that the agree-000 from him to them, and demanded of him that ment of February 20, 1869, contained a recital he should make an absolute conveyance of the that 1. Willard Fox had sold and conveyed to Lake Zurich farm and the La Salle Street lot; Samuel H. Fox the La Salle Street lot, the pro- that he denied the correctness of such account ceeds thereof to be applied towards payment of and at first refused to make the conveyances, the indebtedness from I. Willard Fox to Fox & but was induced to execute them, provided Co.; that by such agreement that lot was not in Samuel H. Fox would execute the instrument any event to be reconveyed to I. Willard Fox; of February 20, 1869, as a condition of dethat the plaintiff had sold and conveyed the lot; feasance, and upon the verbal assurance of and that, being willing to do what was just and Samuel H. Fox that Fox & Co. would not inequitable, she offered to credit and allow to I. sist upon the payment of the $70,000 named in Willard Fox the amount for which she had sold it, or of any sum other than that which should the lot, or otherwise its value, in reduction of be found to be due from I. Willard Fox to Fox the sum due to her from I. Willard 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.

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 $11] deed conveying 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 II. 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

[612]

[613]

[614]

and I. Willard Fox since February 20, 1869; | W. Goodwin, a decree be entered requiring a
that there is nothing due from him to Fox & reconveyance of such real estate on the pay-
Co.; that the La Salle Street lot was conveyed, ment of the amounts found to be due from I.
like the Lake Zurich farm, as security; that, if Willard Fox; and for general relief.
such lot has been sold pending the suit, its pur-
chaser has taken it with notice of the equitable
rights of the defendants; that they claim a re-
conveyance of the Lake Zurich farm and the
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.