Deimel v. Brown

• Decision Date: 30 March 1891
• Citation: 27 N.E. 44,136 Ill. 586
• Parties: DEIMEL et al. v. BROWN et al.
• Court: Illinois Supreme Court

136 Ill. 586

27 N.E. 44

DEIMEL et al.

v.BROWN et al.¹

Supreme Court of Illinois.

March 30, 1891.

Appeal from appellate court, first district.

Moses, Newman & Pam, for appellants.

Tenney, Hawley & Coffeen, E. C. Crawford, and Cratty Bros. & Ashcraft, for appellees.

BAKER, J.

In September, 1884, Jacob Biersdorf, of 362 Canal street, Chicago, failed in business. Thereafter Brown, De Furck & Co. recovered in the superior court of Cook county two judgments against him for the aggregate amount of $7,291.64, besides costs; and Bean, Hughes & Co. recovered judgment against him in the same court for $410.87, besides costs; and William A. Comstock recovered judgment against him in the county court of said county for $499.13, besides costs; and Hammacher, Schlemmer & Co. recovered judgment against him in said superior court for $1,285.34 and costs. Brown, De Furck & Co. and Bean, Hughes & Co. joined in a creditors' bill, which was exhibited in said superior court, and William A. Comstock and Hammacher, Schlemmer & Co. filed intervening petitions. Jacob Biersdorf, Mrs. Jacob Biersdorf, the Sugg & Biersdorf Furniture Manufacturing Company, and the present appellants, Simon, Joseph, and Rudolph Deimel, composing the firm of Deimel & Bros., were made parties to the original and amended bills, and the intervening petitions. Subsequently the complainants in the bills and the intervening petitioners dismissed their suits as against Mrs. Jacob Biersdorf and the Sugg & Biersdorf Company. Answers and replications were filed, and the cause was heard upon the pleadings and proofs, and the court found the material allegations of the amended bill and the intervening petitions to be true, and entered a decree rendering judgments against Simon Deimel, Joseph Deimel, and Rudolph Deimel, and in favor of Brown, De Furck & Co., for $8,820.47; in favor of Bean, Hughes & Co. for $504.13; in favor of William A. Comstock for $608.42; and in favor of Hammacher, Schlemmer & Co. for $1,437.19; and awarding executions for said several and respective amounts, and for costs. Appeals were taken by the Deimels from these several decrees in favor of different judgment creditors of Biersdorf, and by consent of parties the appeals were heard both in the appellate court and in this court as one appeal. There was a judgment of affirmance in the appellate court.

The theory of the amended bill and of the intervening petitions is that in February, 1884, Biersdorf, the principal defendant, sold and delivered to the co-defendants, Simon, Joseph, and Rudolph Deimel, composing the firm of Deimel & Bros., 209 pieces of Tingue plushes, at $1.65 per yard, and of the aggregate value of $14,700; and that said $14,700 remains unpaid and owing from the co-defendants to Biersdorf; and that they, for the purpose of keeping said money out of the reach of the creditors of Biersdorf, falsely claim and pretend that the purchase price of said Tingue plushes has been paid and discharged, but that in fact the claimed payment was fictitious and colorable merely, and a part of a scheme to defraud the creditors of Biersdorf, and that since said money still remains unpaid, it ought to be applied in satisfaction of the judgments of the several appellees against Biersdorf. The principal defendant and the co-defendants were called upon the answer under oath. The answer of Biersdorf states that for nearly three years prior to his failure he was, and since has been, confined to his bed by sickness, and thereby compelled to leave the management of his business in the hands of one Max Berg, ‘and therefore has little or no knowledge of the condition or character of said accounts or other matters connected with said business or its assets.’ It further states that he has neither possession nor control nor knowledge of his books of account. It admits that Rudolph Deimel, Joseph Deimel, and Simon Deimel had numerous business transactions with him in the way of purchasing goods of him, but denies that at the time of the filing of the bill of complaint a large part or any part of the purchase price of said goods remained unpaid, or that the Deimels were then or are owing him on account of said purchases $15,000 or any other sum. The substance of the joint and several answers of Simon, Joseph, and Rudolph Deimel is as follows: That some time in the month of February, 1884, they bought a large quantity of plush from Jacob Biersdorf, amounting in all to about 209 pieces. The plush was received in the month of February, 1884, and was what is known in the commercial warld as what is known in the commercial world as ‘Tingue’ plush, and was of the value of the following manner: On the 29th day of January, 1884, Jacob Biersdorf had purchased from the defendants lumber and merchandise to the amount of $12,787, and om February 7, 1884, to the amount of about $5,502.50, and afterwards became indebted to them upon other transactions in the sum of about $1,000, and that said accounts were adjudged and set off against each other, and the difference paid these defendants in cash or notes, which were afterwards paid by Biersdorf; that said settlement was made in September, 1884, and that at that time Biersdorf was indebted to the defendants in the sum of $19,000. They further answered that they were not, nor are either of them, in any wise or to any extent indebted to Jacob Biersdorf, nor were they so indebted at the time of the filing of the original bill in said cause, and that they did not then have or have they now in their possession, custody, or control any property of any kind or nature belonging to Jacob Biersdorf, or in which he has or had any interest, claim, or demand whatsoever, and that they hold no such property in trust for him, either directly or indirectly. The matter to charge appellants-the purchase by them in February, 1884, from Biersdorf of a lot of Tingue plushes for $14,700-is claimed in the bill and petitions and admitted in the answer. The rule is that where a fact is alleged in a bill and admitted by the answer, such admission is conclusive of the existence of the fact, and other evidence to establish such fact is unnecessary. Insurance Co. v. Myer, 93 Ill. 271;Morgan v. Corlies, 81 Ill. 72. The matter in discharge of appellants, as stated in their answer, is that on January 29, 1884, Biersdorf bought of them ‘Iumber and merchandise’ to the amount of $12,787, and on February 7, 1884, to the amount of $5,502.50, and afterwards became indebted to them in the further sum of about $1,000, and that in September, 1884, a settlement was made between them, and the accounts set off against each other, and the difference paid by Biersdorf to them. It is admitted that these statements are responsive to the charges and interrogatories contained in the bill and petitions, but appellees deny the truth of such statements. The material issue in the case, then, is whether or not appellants paid and settled for the $14,700 worth of plushes, as is represented by them in their sworn answer.

What weight have the sworn answers as evidence for appellants? The general rule is that, where an answer to a bill in chancery is required to be made under oath, and an answer is filed which is responsive to the allegations of the bill, then all material averments of the bill that are denied by such answer must be proved by the testimony of two witnesses, or by evidence which is equal to the testimony of two witnesses. This rule, however, has no application to averments denied upon information and belief, or where the defendant himself refutes the sworn statements in his answer. It is only when a defendant states facts within his own personal knowledge that his answer has to be overcome by evidence equivalent to the testimony of two witnesses. Fryrear v. Lawrence, 5 Gilman, 325. In the case cited this court said: ‘While a defendant's answer, which is required to be sworn to, is made evidence in the cause by the complainant, it is only entitled to weight when it is entitled to belief; and if he chooses to swear to that which the court sees he cannot, or which he admits he does not know, he is entitled to no more credit, and is subject to the same censure and condemnation as any other reckless witness, who the court sees is trying to impose upon it his belief, when he should only speak of his knowledge. The court is not a mere machine to weigh everything that is offered without examining its value, any more when the defendant's oath is put into the scale than when examining the testimony of any other witness.’ The answer of the defendant Biersdorf states that in September, 1884, and for nearly three years prior thereto, he was, and for the greater part of the time since then has been, confined to his bed by sickness, and was compelled to leave the management of his business to one Max Berg, ‘and therefore has little or no knowledge of the condition or character of said accounts or other matters connected with said business or its assets.’ This admission thoroughly impeaches his answer as evidence, and renders his denial contained therein of any indebtedness from Deimel & Brothers to him of no probative force whatever. It is manifest that at the most such denial is based upon mere information and belief.

The joint and several answer of the appellants is sworn to by all three of them. The statements in said answer are made in positive and unqualified terms. But there is in evidence in the cause the record in a garnishment suit prosecuted in the circuit court of Cook county in the name of Biersdorf for the use of Marshall Field & Co. against said Deimel & Bros.; and it appears therefrom that in said suit it was sought to reach by garnishment the same fund that is here involved, and that the written interrogatories there filed covered the same transactions and facts that are embraced in the answer now under consideration. It further appears from said record that, while all three of the appellants...