Angus v. Chicago Trust & Sav. Bank

Decision Date22 December 1897
Citation48 N.E. 946,170 Ill. 298
CourtIllinois Supreme Court
PartiesANGUS et al. v. CHICAGO TRUST & SAVINGS BANK.

OPINION TEXT STARTS HERE

Appeal from appellate court, First district.

Action by the Chicago Trust & Savings Bank against John Angus and others. Judgment for plaintiff was affirmed in the appellate court (68 Ill. App. 425), and defendants appeal. Affirmed.

Reber & Noble, for appellants.

Cratty Bros. and Jarvis & Cleveland, for appellee.

MAGRUDER, J.

This is an action of assumpsit, brought by appellee against appellants on August 16, 1893, upon two promissory notes executed by the appellants Angus & Gindele payable to the order of James F. Keeney, and indorsed by Keeney to the appellee herein. The defendants were not served with process until June 14, 1895. On July 3, 1895, they filed two pleas: First, nonassumpsit; second, the plea of payment. On September 21, 1895, leave was given to the defendants to file special pleas, and on September 23, 1895, they filed two special pleas. The latter pleas were demurred to, and the demurrers were sustained. On January 27, 1896, leave was given to the defendants to file an additional plea instanter, and to plaintiff to reply thereto instanter. The additional plea thus filed was a plea puis darrein continuance. A replication was filed to said plea, which will be mentioned hereafter. The cause was tried before a jury, who found the issues for the plaintiff, and assessed its damages at the sum of $2,027.27. The latter amount was the sum total of the principal and interest due upon the notes sued upon. Motion for a new trial was overruled, and judgment rendered upon the verdict for the amount thereof. Upon appeal to the appellate court the judgment has been affirmed, and the present appeal is from such judgment of affirmance by the appellate court.

The appellants seek a reversal of the judgment upon two grounds only:

1. It is claimed by the appellants that the court erred in instructing the jury to find a verdict for the plaintiff, and to assess its damages at the sum of $2,027.27. The giving of the instruction so given in writing was waived. The court committed no error in thus instructing the jury.

The additional plea, filed on January 27, 1896, being a plea puis darrein continuance, waived all previous pleas, and confessed the matter in dispute between the parties. The general rule is that a plea puis darrein continuance supersedes all other pleas and defenses in the cause; and, by operation of law, the previous pleas are stricken from the record, and the cause of action is admitted to the same extent as if no other defense had been urged than that contained in this plea. Everything is confessed except the matter contested by the plea puis. City of East St. Louis v. Renshaw, 153 Ill. 491, 38 N. E. 1048, and cases there cited. Here the plea puis alleges that, after the last proceeding in this cause,-that is to say, after the 4th day of November, 1895,-the defendants gave to the plaintiff, and the plaintiff then accepted from the defendants, their checks payable to the order of D. H. Tolman (the president of the appellee bank), said checks being nine in number, of different amounts, and of different dates betweenNovember 11, 1895, and July 11, 1896, and amounting altogether to $4,536.93, most of which checks were dated in advance. The plea puis also avers that these checks were given to the plaintiff and received by it in full settlement of the notes sued on in this cause. To this plea a replication was filed by the plaintiff, in which it was averred that the said checks were not given to the plaintiff and received by it in full settlement of the notes sued on in this cause. It thus appears that the issue or matter in dispute between the parties, as presented by the plea puis and the replication thereto, was whether or not the checks were given and received in full settlement of the notes sued on. The burden of proof upon this issue was upon the appellants, and there is no evidence in the record which tends to support the issue thus made. The only testimony upon the subject in support of the contention of the appellants was given by the appellant Gindele, who says: ‘I gave Mr. Tolman about eight or ten checks in payment of all that Angus & Gindele owed him, as in full settlement. He was to retain all the notes, and pass them over as fast as we paid the checks. He was to retain the notes as collateral, and this suit was to stand until the checks were paid. The...

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10 cases
  • Meyer v. The National Fire Insurance Company of Hartford, Conn., a Corp.
    • United States
    • North Dakota Supreme Court
    • November 14, 1936
    ...Loan & Invest. Co. v. Bleasdale, 140 Iowa 695, 119 N.W. 77; Angus v. Chicago Trust & Sav. Bank, 68 Ill.App. 425, affirmed in 170 Ill. 298, 48 N.E. 946; Padfield Green, 85 Ill. 529; Lincoln v. Finkelstein, 255 Mass. 486, 152 N.E. 332, 334; and Powell v. Henry, 96 Ala. 412, 11 So. 311, 314; 2......
  • John Deere Plow Co. of Moline v. Carmer
    • United States
    • Illinois Supreme Court
    • October 22, 1932
    ...the party making the motion. Wolf v. Chicago Sign Printing Co., 233 Ill. 501, 84 N. E. 614,13 Ann. Cas. 369;Angus v. Chicago Trust & Savings Bank, 170 Ill. 298, 48 N. E. 946;Rack v. Chicago City Railway Co., 173 Ill. 289, 50 N. E. 668,44 L. R. A. 127;Marshall v. Grosse Clothing Co., 184 Ill......
  • Wolf v. Chicago Sign Printing Co.
    • United States
    • Illinois Supreme Court
    • April 23, 1908
    ...of law as to the legal sufficiency of the evidence to sustain a verdict against the party making the motion. Angus v. Chicago Trust & Savings Bank, 170 Ill. 298, 48 N. E. 946;Rack v. Chicago City Railway Co., 173 Ill. 289, 50 N. E. 668,44 L. R. A. 127;Marshall v. Grosse Clothing Co., 184 Il......
  • Richard Crawford v. John Burke
    • United States
    • U.S. Supreme Court
    • November 7, 1904
    ...Mount v. Scholes, 120 Ill. 394, 11 N. E. 401; East St. Louis v. Renshaw, 153 Ill. 491, 38 N. E. 1048; Angus v. Chicago Trust & Sav. Bank, 170 Ill. 298, 48 N. E. 946; Kimball v. Huntington, 10 Wend. 675, 25 Am. Dec. But notwithstanding this, plaintiff was permitted to introduce evidence in p......
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