Donnan v. Bang
| Decision Date | 28 February 1879 |
| Citation | 3 Ill.App. 400,3 Bradw. 400 |
| Parties | ANDREW DONNANv.WILLIAM BANG. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding.
Mr. C. F. NOETLING and Mr. R. A. HALBERT, for appellant; that the note given by one of the defendants in settlement of the claim, should have been surrendered before bringing suit against the maker and another jointly for the same cause of action, cited Stevens v. Bradley, 22 Ill. 244; Rayburn v. Day, 27 Ill. 47.
Statements in regard to a partnership made by one defendant in the absence of the other, should not have been admitted: Degan v. Singer, 41 Ill. 28; Hahn v. St. Clair S. & Ins. Co. 50 Ill. 456; Bishop v. Georgeson, 60 Ill. 434.
If a partnership is to be implied against defendants as directors of the railroad company, it should be against all the directors: Hickey v. Stone, 60 Ill. 458.
Instructions must be based on evidence: Nicholls v. Bradsby, 78 Ill. 44; Ryan v. Donnelly, 71 Ill. 100; Reinback v. Crabtree, 77 Ill. 182; Drohn v. Brewer, 77 Ill. 280; T. W. & W. R. R. Co. v. Ingraham, 77 Ill. 309; Strauss v. Minzesheimer, 78 Ill. 492; Ill. Cent. R. R. Co. v. Cragin, 71 Ill. 177; I. B. & W. R. R. Co. v. Birney, 71 Ill. 391; Alexander v. Mt. Sterling, 71 Ill. 366; I. &. St. L. R. R. Co. v. Miller, 71 Ill. 463; P. F. W. & C. R. R. Co. v. Powers, 74 Ill. 341.
Where improper instructions may have contributed to the result, a new trial should be given: T. W. & W. R. R. Co. v. Moore, 77 Ill. 217; T. W. & W. R. R. Co. v. Corn, 71 Ill. 493; C. B. & Q. R. R. Co. v. Van Patten, 74 Ill. 91.
Messrs. HAY & KNISPEL, for appellee; that it was unnecessary to prove a joint liability, it not having been put in issue by affidavit, cited Rev. Stat. Chap. 79, § 58; Warren v. Chambers, 12 Ill. 124; McKinney v. Peck, 28 Ill. 174; Stevenson v. Farnsworth, 2 Gilm. 715; Dwight v. Newell, 15 Ill. 333.
Defendants held themselves out as partners, and became liable to third persons as such: Poole v. Fischer, 62 Ill. 181; Smith v. Knight, 71 Ill. 148; Fischer v. Bowles, 20 Ill. 396; Niehoff v. Dudley, 40 Ill. 406.
A verdict will not be disturbed unless it is manifestly against the weight of evidence: Palmer v. Wier, 52 Ill. 341; Davis v. Hoeppner, 44 Ill. 306.
Even if there be a slight preponderance against the verdict it will not be disturbed: Bloomer v. Denman, 12 Ill. 240; Gooddell v. Woodruff, 20 Ill. 191; Chase v. Debolt, 2 Gilm. 371.
Taking a promissory note is a conditional payment only: Story on Promissory Notes, § 104; Heartt v. Rhodes, 66 Ill. 351.
A recovery can be had on the original consideration, without surrender of the note, if the note cannot be enforced by a third party: Miller v. Lumsden, 16 Ill. 161; Leake v. Brown, 43 Ill. 372.
It is not error to admit evidence which does not prejudice the opposite party: Thompson v. McLaughlin, 66 Ill. 407; C. & A. R. R. Co. v. Clampit, 63 Ill. 95.
The fact that improper evidence is admitted without objection, will not justify its rebuttal by evidence of the same character: Wickenkamp v. Wickenkamp, 77 Ill. 92.
This suit was brought by Bang against Donnan and Henderson, before a justice of the peace. Henderson was not served. Judgment having been rendered against Donnan, he appealed to the Circuit Court. The case was tried by a jury in the Circuit Court, and again resulted against Donnan. A motion for new trial having been overruled, the case is brought to this court by appeal.
The plaintiff's demand was for board furnished to a number of men who were engaged in surveying a projected railroad. These men were brought to the plaintiff by Henderson, who said the board should be charged to Donnan and himself. The bill amounted to $136.70, upon which Henderson paid $34.35, and for the balance, $102.35, gave the plaintiff his individual note, which plaintiff assigned to the People's Bank. This note not being paid, suit was brought upon it by the bank against Henderson, and afterwards against Bang as endorser. Bang paid the latter judgment. There is no evidence in the record to show that Donnan authorized Henderson, or any one else, to incur this liability on his account; nor is there any evidence tending to show that Donnan and Henderson were partners in any wise, except that they were joint owners of some real estate.
The evidence for the defense shows that they were not partners, and that Henderson had no authority to pledge the credit of Donnan. These two men and a number of others were corporators of the railroad company, of which Donnan was vice president. The bill was clearly incurred on account of the corporation. Henderson and Donnan were each actively engaged in pushing the survey, obtaining right of way, etc., and so far as they chose, could of course make themselves liable for supplies or services furnished to the company, but neither had power to involve the other without his consent. It is urged, however, that it was not necessary to prove the joint liability of Donnan and Henderson, they having been sued as joint defendants, and the joint liability not having been put in issue by affidavit. This proposition involves the proper construction of Sec. 58, Chap. 79, Rev. Stat. entitled “justices and constables,” which reads as follows: “In actions upon contracts, expressed or implied, against two or more defendants as joint defendants or partners, or joint obligors or payors, whether so alleged or not, proof of the joint liability or partnership of the defendants, or their christian or surnames, shall not in the first instance be required, to entitle the plaintiff or plaintiffs to judgment, unless the defendant or defendants, or any of them, shall deny the partnership or joint liability, or the execution of the instrument sued upon, by affivavit.” On the one side it is contended that the want of such an affidavit precludes the defendants from questioning joint liability by proof. On the other, it is contended that the failure to file such affidavit only dispenses with the necessity of proof on the part of plaintiff in the first place, and that thereby a prima facie case only is made out, leaving defendants at liberty to offer evidence to overcome this presumptive or prima facie case. At common law, the plaintiff was held bound to prove every material averment essential to recovery, including, of course, the proof of the execution of a written instrument sued on, and the joint liability of all defendants in the action.
If the plaintiff failed in proving a joint contract he might be nonsuited on the trial, 1 Chitty Pl., 44; and the consequences of a mistake in this respect were serious and important. By the 12th section of the approved Jan. 29, 1827, it was provided that no person should be permitted to deny on trial the execution of any instrument in writing sued on, etc., unless he should verify his plea by affidavit. This statute did not change the mode of pleading, but the rule of evidence only. The pleas of non est factum and non assumpsit were still proper, but unless verified by affidavit, the plaintiff was not bound to prove, and defendant was not permitted to deny, the execution of the instrument as before the passage of the act. The act, however, did not apply to the question of partnership or joint liability, and the plaintiff was still bound to make good this allegation in actions against partners or other joint defendants. To obviate this difficulty in part, it was provided in the second section of the approved February 17, 1841, “In actions upon contracts, express or implied, against two or more defendants, alleged to have been made or executed by such defendants as partners, or joint obligors, or payors, proof of the joint liability or partnership of the defendants, or their christian or surnames shall not, in the first instance, be required to entitle the plaintiff to judgment, unless such proof shall be rendered necessary by pleading in abatement, or the filing of pleas denying the execution of such writing, as is required by the In the case of Stevenson v. Farnsworth, 2 Gilm. 715, it was held that this statute was intended to change the rule of evidence respecting the proof of partnership and put it upon the same footing with proof of the execution of written instruments, and that this act must receive the same construction as the act to which it referred, and if the partnership was not denied under oa?? h, it was conclusively admitted. In the revision of 1845 the 12th section of the act of 1827, with reference to the proof of the execution of written instruments, appears as a part of section 14 of the Practice Act, chapter 83, R. S. 1845, page 415, while the 2nd section of the act of 1841 appears as section 8 of chapter 40, in regard to evidence and depositions, R. S. 1845, page 233, with this change, that the words “as required by law,” are substituted for the words “as required by the act concerning practice in courts of law.” In the case of Warren v. Chambers, 12 Ill. 124, the Supreme Court said: “The change of these words can not in the least alter the construction to be put upon the act.” It is clear, therefore, that the phrase the “filing of pleas denying the execution of such writing,” has reference to the plea required to be filed by section 14, chapter 83, R. S. to put in issue the genuineness of the instrument upon which suit is brought; and it was held that when persons were sued as partners not upon a written instrument, the joint liability should be put in issue by plea in abatement sworn to, and this not having been done, the partnership was conclusively admitted. In these cases the words “in the first instance,” which were then in the section, were not deemed to limit the force of the section, but it was read as though these words were not in it, and the...
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