Bartalott v. Int'l Bank of Chicago

• Decision Date: 25 January 1887
• Citation: 9 N.E. 898,119 Ill. 259
• Parties: BARTALOTT v. INTERNATIONAL BANK OF CHICAGO.
• Court: Illinois Supreme Court

119 Ill. 259

9 N.E. 898

BARTALOTT

v.INTERNATIONAL BANK OF CHICAGO.

Supreme Court of Illinois.

January 25, 1887.

Appeal from First district.

SCOTT, C. J., dissenting.

W. E. Hughes, (Leaming & Thompson, of counsel,) for appellant.

Rosenthal & Pence, for appellee.

SCHOLFIELD, J.

The appellate court held that since there is conclusive evidence showing that on the eleventh day of September, A. D. 1873, at the time that Samuel J. Walker paid the appellee the $20,000 in satisfaction and discharge of the principal notes for which the two $15,000 notes secured by the trust deed were held as collateral security, Samuel J. Walker was indebted to the appellee to the further amount of nearly or quite $200,000, on a large amount of which it held no specific security, the appellee was entitled to still retain the two $15,000 notes, and trust deed securing them, as collateral security for such further indebtedness, by virtue of the agreement made and reduced to writing between the appellee and Samuel J. Walker on the seventh day of July, A. D. 1869, unless the appellant has proved that at the time that Walker made such payment, there was a special arrangement or agreement between said Walker and appellee to the effect that the payment of the principal notes in this instance operated as a redemption of the collateral; that there is no evidence in the record tending to prove such arrangement or agreement; and that, therefore, the circuit court properly directed the jury to find in favor of the appellee.

The questions presented for our consideration, by the arguments before us, are- First. Even assuming that the circuit court did not misjudge as to the character and effect of the evidence, was it competent for that court to instruct the jury to find in favor of the appellee, after evidence had been introducedby appellee to sustain the defense? Second. If it was competent to so instruct the jury, then upon whom was the burden of proof on the question of whether it was agreed and intended by the parties that the payment of the $20,000 notes by Walker should discharge the two $15,000 collateral notes, and release the trust deed securing them? Third. If the burden was on appellant, then was there any evidence proper for the consideration of the jury, tending to prove such agreement and intention?

1. Although we have said that motions to exclude the entire evidence from the jury, and motions to instruct the jury to find for the defendants, are in the nature of demurrers to evidence, yet this relates rather to the mode of viewing the evidence than to this time or mode of interposing such motions. They are in the nature of demurrers to evidence, in that they admit, not only all that the testimony of the plaintiff proves, but also all that it tends to prove. Frazer v. Howe, 106 Ill. 573. But none of the technical particularity is required in making such motions that is required in demurrers to evidence, and no judgment is rendered against the defendant in disallowing the motion. They are usually informal, and most frequently made by simply presenting to the court an instruction to be given or refused, instructing the jury that the evidence is excluded, or that they should find for the defendant, or, it may be, both. It would certainly be proper, and, where the motion can rightly be sustained, most convenient, to present the motion at the conclusion of the plaintiff's evidence, so as to at once terminate the trial, but we know of no reason or authority why it may not be made after evidence is heard on behalf of the defendant. At most, so far as is now perceived, delaying the motion until after the introduction of defendant's evidence could only affect the question of costs incident to the examination of the defendant's witnesses; and this obviously would appeal only to the discretion of the court on a motion to retax costs, as in case of the examination of unnecessary witnesses. In the following cases the practice seems to have been to entertain the motion after hearing the evidence of the defendant: Rood v. Inhabitants of Deerfield, 8 Allen, 524;Improvement & R. Co. v. Munson, 14 Wall. 442;Randall v. Baltimore & O. R. Co., 109 U. S. 478;S. C. 3 Sup. Ct. Rep. 322; and Herbert v. Butler, 97 U. S. 318. And that practice is recommended by this court in City of Mattoon v. Fallin, 113 Ill. 249.

2. The declaration contained the common counts only. The plea of the statute of limitations affirmed, generally, that any cause of action that the plaintiff might have under those counts was barred. The replication set out specific facts constituting a cause of action, and that knowledge of such facts was concealed from appellant. This was traversed by the rejoinder. The burden was then upon the appellant to prove his plea. If a thing alleged as a fact never existed, it would seem clear that knowledge of it could not have been concealed; and so, in order to sustain his plea, it was incumbent on him to prove, first, the existence, and, then, the concealment, of the alleged facts. It was incumbent on appellant to thus particularly reply, (Beatty v. Nickerson, 73 Ill. 605;) and the same necessity exists for specific proof as for specific allegation, (Watt v. Kirby, 15 Ill. 200.)

But, apart from this, the defendant pleaded to the original declaration that it, ‘together with said Barthold Lowenthal, did not undertake and promise, in manner and form,’ etc. This plea was not sworn to, and therefor could but amount to the general issue. When a nolle prosequi was entered as to Lowenthal, so much of the plea as alleged that, ‘together with said Barthold Lowenthal,’ became surplusage. It may be that, when the amended declaration was filed, appellant might have required a new and more specific plea; but he did not do so. He neither demurred to this plea, nor asked that appellant replead. Three trials were had in the circuit court, and the cause was three times passed upon by the appellatecourt, without any objection ever being urged in either court to the sufficiency of this plea. The appellate court in 11 Bradw. 620, and again in 14 Bradw. 158, expressly characterize it as the general issue. Even if we thought that characterization inaccurate, which we do not, it is now too late to raise any question upon it. The plea sufficiently put in issue the allegations of the declaration, and imposed the burden upon appellant of proving...