Carpenter v. First Nat. Bank of Joliet

• Decision Date: 25 January 1887
• Citation: 10 N.E. 18,119 Ill. 352
• Parties: CARPENTER and another v. FIRST NAT. BANK OF JOLIET.
• Court: Illinois Supreme Court

119 Ill. 352

10 N.E. 18

CARPENTER and another

v.FIRST NAT. BANK OF JOLIET.

Supreme Court of Illinois.

January 25, 1887.

Appeal from appellate court, Second district.

Action by First National Bank of Joliet, appellee, against Henry S. and Charles H. Carpenter, appellants, to recover the balance due on their promissory note.

The following facts are taken from the opinion of the appellate court, (BAKER, J.:)

‘In the early part of 1884 Frederick W. Woodruff and A. L. Jones purchased some sixty thousand bushels of Kansas corn, and had it stored in special bins, to their order, in the Joliet elevator at Joliet, Illinois. A part of this corn was disposed of during the spring, and on the nineteenth of June they shipped to Chicago five car-loads of it, which arrived there at an early hour on the morning of the 20th. This left some forty-one thousand three hundred and seventy-three bushels still on hand, of which about seven thousand bushels were recognized as being in a bad condition, and had been separated from the rest; and there was a question as to the real condition of the residue, and as to whether or not it would pass inspection at Chicago as No. 2 corn. The whole of this corn yet on hand, that which was damaged as well as that which was supposed to be good, was, either on the nineteenth or on the twentieth of June, sold by H. S. Carpenter & Company, grain dealers at Joliet and appellants herein, at fifty-four cents a bushel. Fifteen thousand dollars of the price agreed to be paid for the corn has been paid; and the present controversy grows out of an attempt to enforce the collection of a promissory note for $7,341.82, given for the residue of the purchase money. The note was made payable to the First National Bank of Joliet, appellee, but it is admitted that it is not the property of the bank, but that Woodruff and Jones are the real owners of it. On the eleventh of July, 1884, the note, a warrant of attorney, affidavit, declaration, and cognovit were filed in the office of the clerk of the circuit court of Will county, and a judgment thereon by confession entered in vacation for $7,377.34, against appellants and in favor of appellee. The declaration filed described a note dated the nineteenth day of July, 1884, instead of a note bearing date the nineteenth day of June, 1884. On the twenty-fourth day of July an order was made by the circuit judge, in vacation, staying the execution that had been issued on the judgment; and, at the September term of the court, on the motion of appellant, the judgment was opened, and they were let in to plead, and an order was made that the judgment should stand as security. The general issue was filed, and with it a stipulation that any evidence might be given under it which could have been given under any special pleas; and by leave of the court the declaration was amended by striking out the word ‘July’ in the description of the note, and substituting there the word ‘June.’

‘After the case was called for trial, at the January term, 1885, the appellants moved the court to enter an order allowing to them the opening and close of the cause, the appellants, for the purposes of the motion and the trial of the cause, if granted, admitting the execution and delivery of the promissory note attached to the declaration, but the motion was overruled, and an exception taken. Upon the trial the contention of appellants was that the purchase of the corn was made on the twentieth day of June, and was conditional that the five car-loads that had been shipped to Chicago, and which was similar corn to the great bulk of that included in the purchase, had passed inspection at Chicago as No. 2 corn, and that, to induce the closing of the contract, Woodruff, fraudulently represented to them that said five car-loads had passed such inspection as No. 2 corn, and displayed to them a telegram of that date, fraudulently sent by his partner, Jones, from Chicago, which read: ‘Corn inspected. All right.’ They further claimed that the corn was purchased for the Philadelphia market, and was intended to fill contracts they had with Gill & Fisher, limited, of Philadelphia, for ‘sail’ corn, and with other Philadelphia firms, and that the vendors knew this; and that it was also known to the vendors that they intended to make a mixture of No. 2 Chicago corn with dry rejected Illinois corn, two-thirds of the first to one-third of the latter, and thereby produce a quality of corn which would pass inspection at Philadelphia as ‘sail’ corn, and which could be turned in on their contracts; that the corn sent to Chicago was inspected there as ‘rejected corn, soft and souring,’ and that the corn purchased by appellants, or most of it, was immediately, and before they had notice of the actual result of the Chicago inspection, mixed with Illinois corn, and shipped to Philadelphia, and arrived there in bad condition, did not pass inspection as ‘sail’ corn, and was sold and disposed of there at a considerable loss. It was claimed by appellants that this loss was sufficient to pay the whole amount of the principal and interest of the note, and they sought to set off this damage against it.

‘The contention on the part of the appellee was that the contract was closed on the nineteenth of June; that Woodruff and Jones simply sold the grain on its merits, and, after full inspection by appellants, that they did not warrant either its quality or condition, and that the telegram of the twentieth of June had nothing to do with the making of the contract; and, further, that they had no notice it was intended for the Philadelphia market, or to fill contracts there.

‘The verdict was: We, the jury, find the issue joined ‘in favor of the plaintiff, and assess its damages on the eleventh day of July, 1884, at $5,841.80.’ Motions for a new trial and in arrest of judgment were interposed by appellants, and overruled. Judgment was then rendered upon the judgment in vacation, by confession, on the eleventh day of July, 1884, for the amount of the verdict, $5,841.80, with legal interest on said sum from July 11, 1884, and costs, and the clerk was ordered to indorse the amount of verdict upon all executions issued upon the judgment, as the only sum which, with interest and costs, should be collected.'Garnsey & Knox

, for appellants.

E. C. Hagar, A. O. Marshall, and C. A. Hill, for appellee.

MAGRUDER, J.

In this case a judgment by confession was entered in vacation. The note filed is dated June 19, 1884. The declaration described the note as dated July 19, 1884. Upon motion of the defendants the judgment was opened and defendants were allowed to plead. The case was tried before a jury, and the defendants introduced proof in support of the matters of defense insisted upon by them. After the judgment was opened the circuit court permitted the plaintiff to amend its declaration by describing the note as dated on June 19th instead of July 19th. Defendants claim that the judgment was void, because the date of the note was misstated in the declaration, and that the trial court had no power to permit the amendment. This position is wholly untenable. When the judgment was opened, and the defendants had pleaded, the case was under the control of the court. There was merely a variance between the date in the note and the date in the declaration. The note, warrant of attorney, and cognovit were all a part of the files of the court, and showed that there was a purely clerical error in the declaration, which the court had full power to correct from the papers already in the record. It was, moreover, such an error as was waived by the agreement in the warrant of attorney and in the cognovit to release errors. Hall v. Jones, 32 Ill. 38;Frear v. Commercial Nat. Bank, 73 Ill. 473;Hall v. Hamilton, 74 Ill. 437.

Appellants, who were the defendants below, insist that the circuit court erred in not permitting them to have the opening and closing of the case in the conduct of the trial before the jury. It is admitted that appellee is not the owner of the note sued upon, but merely holds the legal title thereto for F. W. Woodruff and A. L. Jones, the real owners thereof. The note was given in part payment for corn sold to appellants by Woodruff and Jones. The latter claim that they made an absolute and unconditional sale of the corn to appellants on June 19, 1884. On the other hand, the defense set up by the appellants on the trial below was that they agreed to purchase the corn upon condition that five car-loads of corn of the same kind which Woodruff and Jones had shipped from Joliet to Chicago on June 19, 1884, should turn out, upon inspection in that city, to be of the grade known as No. 2 corn; that on June 20, 1884,...