American Hard Rubber Co. v. Howe
| Decision Date | 23 October 1917 |
| Docket Number | No. 11366.,11366. |
| Citation | 280 Ill. 431,117 N.E. 425 |
| Parties | AMERICAN HARD RUBBER CO. v. HOWE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Second Branch Appellate Court, First District, on Error to Municipal Court of Chicago; Charles A. Williams, Judge.
Action by the American Hard Rubber Company against Thad H. Howe. Judgment in the municipal court for plaintiff, and defendant brings error. Reversed and remanded.
Harry A. Biossat, of Chicago, for plaintiff in error.
Edward L. England, of Chicago, for defendant in error.
Defendant in error recovered a judgment for $2,000 in the municipal court of Chicago against plaintiff in error, Thad H. Howe. The Appellate Court for the First District affirmed the judgment of the municipal court on a writ of error sued out of that court by plaintiff in error. A petition for certiorari was allowed by this court, and the plaintiff in error seeks to have the judgment of the Appellate Court reversed on a writ of error.
The facts in the record disclose that on May 6, 1914, the Swiss-American Vaporator Company desired to purchase certain goods, wares, and merchandise from defendant in error, and, not being of sufficient financial responsibility to induce the defendant in error to ship the goods, the latter declined to do so unless payment was assured. Thereupon plaintiff in error signed a written guaranty, by which he guaranteed to defendant in error the prompt payment at maturity of the full debt and obligation of the Swiss-American Vaporator Company that might be thereafter contracted by it respecting said goods and the delivery of the same by defendant in error. It is also disclosed by the record that the municipal court, in accordance with paragraph 9 of section 28 of the Municipal Court Act (Hurd's Rev. St. 1915-16, c. 37, § 291), has adopted rules of court providing that the practice in cases of the first class in that court shall be the same as is provided for in cases of the fourth class in that act.
The statement of claim alleged, in substance, that the Swiss-American Vaporator Company purchased certain merchandise from defendant in error; that payment of the same was guaranteed by plaintiff in error; that thereupon defendant in error delivered the merchandise ‘to the defendant’ (plaintiff in error); that the price agreed upon was $3,025; that a payment of $1,025 was made by the Swiss-American Vaporator Company, leaving a balance of $2,000; that afterwards defendant in error instituted suit in the municipal court of Chicago, and obtained a judgment against the Swiss-American Vaporator Company for $1,040, which amount was admitted to be due by the Swiss-American Vaporator Company; that the balance of defendant in error's claim, amounting to $960, was contested and not included in the judgment; that execution was issued on the judgment and returned, ‘No part satisfied;’ that repeated demands for payment had been made by defendant in error upon the Swiss-American Vaporator Company, which were refused; that said company is insolvent, and that any delay in reducing the balance of the claim to judgment would endanger the defendant in error's claim against the plaintiff in error.
The affidavit of merits of plaintiff in error stated, in substance, that he verily believed that he had a good defense to this suit, upon the merits, to the whole of the said demand, and that his defense is as follows:
‘That said plaintiff did not furnish and deliver the goods, wares, and merchandise mentioned in said order and guaranties; that there was no balance of $2,000 due on December 3, 1914; that the Swiss-American Vaporator Company has paid, on account of said judgment of $1,040 mentioned in said statement of claim, $100; that defendant is not liable for costs and interest on said claim; that the plaintiff, on, to wit, March, 1915, in consideration of A. H. Preeman agreeing to pay $100 on said judgment and $100 each and every week thereafter until same was paid, agreed to extend the time of payment of plaintiff's claim, so that same should be paid $100 cash, on, to wit, March 1, 1915, and $100 each and every week thereafter; and that A. H. Preeman paid said plaintiff $100 on account of said agreement, and agreed to pay plaintiff $100 each and every week thereafter.’
On motion of the defendant in error the said affidavit of...
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