Helm v. Cantrell

Citations

• 59 Ill. 524

Syllabus

<p>1. Limitations—new promise. One partner executed a note in the name of the firm, after dissolution, and without the knowledge of the other partner, for a prior account due from the firm, and the note thus given was assigned by the payee to a third person, who was a mere volunteer, and without any assignment of the original indebtedness. In a suit by such assignee, against the representatives of the partner who did not concur in the making of the note, to compel its payment, it was held, that if the original debt became barred by the statute of limitations, as it would in five years, no new promise would revive and malic it available in the hands of the plaintiff.</p> <p>3. Same—effect of the note as against the partner who was not bound by it. In such case, the original indebtedness being barred, the giving of a note therefor, in the name of the firm, by one of the partners alone, would not operate as a renewal or continuation of the debt as against the other partner, who was not bound by the note.</p> <p>8. Allegations and proofs—of the theory upon which a bill is framed. Every fact essential to the plaintiff's title to maintain a bill and obtain the relief sought, must be stated in the bill, otherwise the defect will be fatal; for no facts are properly in issue unless charged in the bill, and of course no proof can be generally offered of facts not in the bill, nor can relief be granted for matters not charged, although they may be apparent from other parts of the pleadings and evidence, for the court pronounces its decree secundum allegata et probata.</p> <p>4. So, where one of two partners executed a promissory note in the name of the firm, after the partnership was dissolved, for a pre-existing debt of the firm, but which had become barred by limitation,-the other partner having no knowledge of the giving of the note at the time, upon bill filed by a subsequent holder, against the widow and heirs of the partner who did not participate in the making of the no