David Rutter & Co. v. McLaughlin

• Decision Date: 06 February 1913
• Citation: 100 N.E. 509,257 Ill. 199
• Court: Illinois Supreme Court
• Parties: DAVID RUTTER & CO. v. McLAUGHLIN.

257 Ill. 199

100 N.E. 509

DAVID RUTTER & CO.

v.McLAUGHLIN.

Supreme Court of Illinois.

Dec. 17, 1912.

Rehearing Denied Feb. 6, 1913.

Appeal from Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; John A. Gray, Judge.

Action by David Rutter & Co. against Robert J. McLaughlin. Judgment for plaintiffs was affirmed by the Appellate Court (169 Ill. App. 430), and, a certificate of importance being granted, defendant appeals. Affirmed.

Rosenthal & Kurz, of Chicago, for appellant.

Philip Clarkson, of Chicago, for appellees.

HAND, J.

This was an action of assumpsit, commenced in the circuit court of Cook county by the appellee against the appellant to recover for certain coal sold and delivered by the appellee to the appellant. The common counts, with an affidavit that the defendant was indebted to the plaintiff in the sum of $709.62, were filed by the plaintiff; and the defendant filed the general issue and an affidavit that he had a good defense to the whole of plaintiff's claim. He also filed a plea of set-off for $2,251 for failure to deliver coal as agreed, and for damages of poor coal furnished him by plaintiff. sequence of poor coal furnished him by plaintiff. A trial before the court and a jury resulted in a judgment and verdict in favor of the plaintiff for $490.88. The defendant prosecuted an appeal to the Appellate Court for the First District, where the judgment of the circuit court was affirmed, and, that court having granted a certificate of importance, the case has been brought to this court for further review by appeal.

[1] The plaintiff made proof that it had sold and delivered to the defendant certain coal in the city of Chicago, pursuant to the terms of a contract between the plaintiff and the defendant, whereby the plaintiff had sold the coal to the defendant for $3.85 and $4 a ton. Thereupon the defendant sought to show in defense of said claim that a portion of the coal sought to be recovered for had been sold and delivered to a firm of which the defendant was a member, and not to him individually. This evidence was excluded by the court, on the ground that the defendant could not raise the question of misjoinder of parties under the general issue; but if he desired to show that another was jointly liable with him, who had not been made a party, and for that reason there could be no recovery, he should have pleaded that fact in abatement. We are of the opinion the holding of the trial and Appellate Courts upon the question raised by the appellant was correct, as the rule is that, if a person be omitted as a defendant who ought to have been joined in an action on a contract, advantage of the omission can only be taken by a plea in abatement, unless the joint liability appears from the plaintiff's own pleading. [257 Ill. 201]1 Chitty's Pl. 46; 1 Saunders' Pl. & Ev. 10; Dicey on Parties to Actions, 247, 528; Hurd's Stat. 1911, c. 1, § 4; Conley v. Good, Breese, 135; Lurton v. Gilliam, 1 Scam. 577,33 Am. Dec. 430;Puschel v. Hoover, 16 Ill. 340;Pearce v. Pearce, 67 Ill. 207;Ross v. Allen, 67 Ill. 317;Sinsheimer v. Skinner Manf. Co., 165 Ill. 116, 46 N. E. 262. The general rule as thus stated is conceded to be correct by appellant, except in cases where the pleadings filed by the plaintiff do not inform the defendant, like the common counts, of the precise claim of the plaintiff, when it is urged the proof of joint...