delivered the opinion of the Court:
This was an action of assumpsit instituted by James H. Carr, in the Jo Daviess Circuit Court, to the August Term, 1863, against Simeon K. Moore. The declaration contained three special counts, on a letter written by defendant to plaintiff, and the usual common counts. The defendant filed the general issue, and three special pleas. The first was a plea of set-off, for services as agent of plaintiff, and for money lent, goods sold and delivered, and for money had and received, etc.
The second special plea set up and relied upon a judgment for $532.57, obtained by the defendant against the plaintiff, as a bar to so much of plaintiff’s cause of action. To the third special plea, a demurrer was sustained. Plaintiff filed a replication to the first special plea, of a former recovery, as an estoppel. To the second special plea he filed a replication of nul Uel record. Defendant afterward withdrew his plea of set-off, and amended his second plea, so as to make it a set-off of the amount of the judgment. Plaintiff filed to that plea a replication, that the judgment was obtained by fraud. Issues were formed on these pleas, and a trial was had before the court and a jury, and a verdict was returned in favor of plaintiff for $752.79. Plaintiff entered a motion for a new trial, which, upon the defendant agreeing that the verdict should be raised to $996.75, was overruled, and judgment was rendered for plaintiff for that sum. Plaintiff below, to reverse the judgment, brings the case to this court on error. It is insisted that the' court below erred in permitting Johnson to testify to the contents of a bill and answer alleged to have been lost; the bill had been filed, and the case litigated between plaintiff in error and one Meyers, in the court below. It is insisted that the loss of the bill and answer was not sufficiently proved to authorize oral evidence of their contents.
It appears that the clerk and his deputy had made diligent search in the office of the clerk for the papers. They state that the papers of the term, at which the cause was tried, had a proper place of deposit in the office, and that they had searched at that place, as well as all others where they supposed they might be found. One of the deputies testified that he had searched the clerk’s office at the previous as well as at that term of the court, but was unable to find the papers. The clerk produced a receipt book, in which attorneys wrote and signed receipts for papers, when they took them from the office, from which it appeared, E. A. Small, on the 3d of October, 1861, had received the papers of the clerk. It also appears that Small was then the attorney of the plaintiff in error. Small testified that he delivered the papers to Green, who subsequently became the attorney for plaintiff in error. He also testified that he had made search in his office during the progress of the trial, and was unable to find them, and that they were not in his possession. Green testified that he had never received the papers, and thinks that Small handed to him the papers of another case, and not the papers in the case of Carr v. Myers. We think that this evidence sufficiently proved the loss of the papers to warrant the admission of oral evidence of their contents. The case of Rankin v. Crow, 19 Ill. 625, is referred to as laying down the rule, and it is supposed this evidence, does not bring this case within that. That case, if it does not lay down the rule too strongly, certainly carries it to the utmost verge. But wre think that this case comes up even to the rule as there announced. It seems to be clear, beyond reasonable doubt, that the papers were not in their proper place of depository, but they were traced to the hands of plaintiff’s attorneys, and their proving that they were not in their hands, sufficiently established their loss, and warranted the reception of the evidence. It, however, was not very material, inasmuch as the decree contained the evidence material to the issue. It seems that this' suit was brought to charge Miner with eighteen hundred dollars, collected by him of Meyers, of money the latter owed plaintiff in error. He had denied the authority of defendant in error to collect the money of Meyers, and the latter filed a bill to enjoin plaintiff in error from proceeding to collect the money by a sale of the mortgaged premises.
The decree finds that defendant in error had collected of Meyers only eleven hundred dollars, and made the injunction perpetual as to that amount, and dismissed the bill as to the remaining seven hundred dollars. Defendant, in his letter to plaintiff in error, says he had received $1,800 of Meyers; but a witness, who was present at the time, says, that he received $1,100 in money; and a note on call for seven hundred dollars, and the decree finds that defendant in error returned this note to Meyers. This, then, left plaintiff in error with a complete remedy on the mortgage for the collection of the seven hundred dollars of Meyers, and his remédy for the eleven hundred dollars against defendant in error, and, for aught that appears, he may have received it, or may have his remedy against Meyers to that extent. This, then, warranted thé jury in finding that defendant was only liable to account to plaintiff in error for eleven "hundred dollars received of Meyers. The letter, like a receipt, which it was, is subject to explanation, and the jury were warranted in determining, from the evidence, how much he had received. Had the evidence shown that plaintiff in error, acting upon the statements contained in the letter, had lost the security he held against Meyers, then defendant would have been estopped from showing that he had received less than the amount stated.
We now come to the consideration of the question of fraud in procuring the judgment pleaded as a set-off by defendant in error. There may be grave doubts, whether the facts relied on in this case constitute such a fraud as will vitiate a judgment previously rendered in another case. The conduct of defendant in error was such as authorized, if it did not require, the court below to have granted a new trial, if his acts had been proved to the court on the trial of that case. But it is not every act of bad faith, duplicity and even untruth, that will constitute such a fraud as will authorize a court, in a collateral proceeding, to hold it fraudulent and void. But in this case, plaintiff in error has had the benefit of his replication. Proof has been adduced under it and passed upon by a jury, and they have found that there was not fraud in obtaining the judgment, and we are not prepared to say that it is such a fraud as should have avoided the judgment. The evidence tends to show that defendant in error did not act with candor and frankness in attempting to settle with the attorney of plaintiff in error; and, while he had fully established his character for shrewdness, he has not added largely to his reputation for truthful candor and fairness in his dealings. It was again urged, that the court erred in overruling the motion for a new trial. It seems, the jury allowed the eleven hundred dollars and interest thereon at six per cent to plaintiff in error, and from that sum they deducted the judgment in favor of defendant in error, and found the balance as their verdict. The evidence showed that defendant always recognized his liability to pay ten per cent interest, and under the statute he could bind himself for that rate by agreement. This the jury should have allowed. The court below, it seems, took this view of the case, and intimated that he would grant a new trial unless defendant in error would consent to increase the verdict to $996.75, which seems to be about the difference in the two rates of interest. To this defendant in error consented and the motion was overruled. If there were no other grounds requiring a new trial to be granted, and we see none, then, when that was corrected, there was no error in overruling the motion. It was a case in which the amount could be calculated with certainty when the basis was found. The practice is one that should be sparingly indulged, and should never be adopted except in clear cases.
The judgment of the court below must be affirmed.
Judgment affirmed.