Edler v. Uchtmann

• Decision Date: 31 March 1882
• Citation: 10 Bradw. 488,10 Ill.App. 488
• Parties: FREDERICK EDLERv.JOHN D. UCHTMANN, Adm'r, etc.
• Court: United States Appellate Court of Illinois

10 Ill.App. 488

10 Bradw. 488

FREDERICK EDLER

v.JOHN D. UCHTMANN, Adm'r, etc.

Appellate Court of Illinois, First District.

March Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding. Opinion filed March 7, 1882.

This was an action of assumpsit, brought by John D. Uchtmann, administrator of the estate of Bernhard William Uchtmann, deceased, against Frederick Edler, to recover for certain indebtedness claimed to have been due, and owing from the defendant to the plaintiff's intestate in his life-time. The declaration counts upon two promissory notes, executed by the defendant to said Uchtmann, one for $3,001.22, dated October 5, 1875, and the other for $850, dated July 3, 1876, both payable twelve months after date, with interest at the rate of ten per cent. per annum. The declaration also contains the common indebitatus assumpsit counts, alleging indebtedness from the defendant to said Uchtmann in his life-time. The cause was tried in the court below on a plea of non assumpsit, and a plea, duly verified, denying the execution of said two notes, and a verdict rendered for the plaintiff for $5,937.72, for which sum and costs the plaintiff had judgment.

The evidence shows that Uchtmann, at the time of his death, was about fifty-nine years old, and a bachelor. For many years he had made his home in the defendant's family, and during a considerable portion of that time, was in the defendant's employ as his book-keeper, at a salary of $300 a year and his board, the defendant then being engaged in the business of a lumber merchant in Chicago. In the year 1867, when said Uchtmann first entered the defendant's employ, he appears to have had several thousand dollars, which he loaned out to different parties, keeping the notes and securities therefor in his own possession at the defendant's house. The evidence shows that he was subject to occasional fits of mental weakness, amounting at times to partial insanity or imbecility, and in consequence of this infirmity he left the defendant's employ some time in the year 1876, although he continued to remain an inmate of the defendant's family most of the time until his death, which took place on the 20th day of January, 1880.

After his death, his administrator took possession of his papers and effects, including his notes and securities against various parties, and among them were found two notes against the defendant, one for $250, dated February 5, 1876, and the other for $200, dated June 5, 1876, both payable twelve months after date, with interest at the rate of ten per cent. per annum. On the $250 note two payments of interest were indorsed, viz.: $25 October 13, 1877, and $25 May 9, 1878. These were all the notes against the defendant found among Uchtmann's effects, but on the defendant's ledger, in Uchtmann's handwriting, appeared an account between the defendant and Uchtmann, running from October 3, 1867, to July 3, 1876. This account was made up mainly of credits to Uchtmann for his annual salary and certain sums of money loaned by him to the defendant, together with interest each year on such credits. The account contained various memoranda, showing that the amount due Uchtmann was evidenced from time to time by the defendant's notes, and under date of October 5, 1875, the amount of Uchtmann's credits were footed up at $3,001.22, and opposite the footing appeared this memorandum: “A new note given.” Also under date of July 3, 1876, was a footing showing $850 due Uchtmann, and a memorandum “New note.”

It is not disputed that the two notes for $250 and $200, were due and owing from the defendant to Uchtmann at the time of Uchtmann's death, and they have since been paid to his administrator. The notes for $3,001.22 and $850, described in the plaintiff's declaration, were not produced at the trial, nor was any evidence given by the plaintiff tending to show what had become of them. No witness was offered by the plaintiff who had ever seen them or who was able to give evidence of their contents. The plaintiff, however, read in evidence from the defendant's books the account between Uchtmann and the defendant, showing the several items of credits to Uchtmann, together with the footings and memoranda above mentioned. Beyond this, the only evidence given by the plaintiff tending to show an indebtedness from defendant to Uchtmann was that of J. H. Fry, a witness who testified to a conversation between them in September, 1876, when some negotiation was going on as to the price Uchtmann should pay the defendant for his board. During the conversation, Fry, who seems to have been speaking for Uchtmann, suggested three dollars, to which the defendant replied that he was satisfied with that when he got it; whereupon Uchtmann remarked “Don't you get it? you have money in your hands.” At the same time the defendant paid Uchtmann the interest on two small notes, after which Uchtmann asked the defendant for more money. The defendant inquiring what he wanted to do with it, Uchtmann said he wanted to put some in the bank, to which the defendant replied “Poh! poh! bank is nothing.”

The defendant called as a witness his son, George A. Edler, who testified to a conversation with Uchtmann in relation to the matters of account between him and the defendant in the winter of 1876 or the spring of 1877. In that conversation Uchtmann said he was going over to the old country. Witness then asked him if he had settled up with the defendant, to which Uchtmann replied that he had, and had taken a couple of notes, one for a little over $3,000, and the other for a little over $800. Witness asked him how long they had to run, and he said there was no time given, as he expected to go to the old country, and might need the money any moment. The witness further testified that some time after this conversation he removed to Kirkland, Illinois, to take charge of a lumber yard belonging to the defendant; that in November or December, 1879, he came to Chicago, his principal errand being to look up a deed to the Kirkland property; that he went to the defendant's house, and on looking through a bureau drawer in which the defendant was accustomed to keep his deeds, insurance policies and other papers, he came across two promissory notes from the defendant to Uchtmann, one for $3,001.22, and the other for $850, both payable on demand, and having written across their face, in the handwriting of Uchtmann and over his signature, a statement that they were paid. It appears that the witness made no mention of this discovery to the defendant until several months afterward, and that the defendant then made search for the canceled notes, but failed to find them.

Frederick C. Edler, another of the defendant's sons, testified that a few weeks before Uchtmann died, Uchtmann invited witness into his room, and while he was there said to him: “Fred, couldn't you fix it so that your father would pay the little balance he is owing me yet--those two little notes?” Witness asked him if he needed the money, and he replied that he did; that he was going to the old country, and would like it settled up, it being so little. The same witness testified that in 1878, he took an account of stock for the defendant, and found that he had from $25,000 to $28,000 worth of lumber, including $7,000 or $8,000 in his yard at Kirkland and Fielding; that witness was afterward absent and returned on the 25th day of June, 1879, and found that the defendant had sold out nearly his entire stock; that he had then about $3,000 in bank, and had paid $3,000 on a mortgage, and that with the exception of the mortgage, he had no indebtedness except what he owed to Uchtmann.

The court, at the request of the plaintiff, gave to the jury the following instructions:

1. “For the plaintiff the court instructs the jury, that if they believe from the evidence that the defendant, Edler, made his note for $3,001.22, dated October 5, 1875, and payable to Bernhard William Uchtmann, deceased, and made his other note for $850, dated July 3, 1879, also payable to said deceased, and delivered said notes to said Uchtmann, deceased; that said notes became due before the suit was commenced, and have been lost and not transferred by the deceased, then they will find for the plaintiff for the full amount of said two notes above mentioned, together with such interest, if any, on such amount, if any, as the jury may, from the evidence, believe to be due from the terms of said notes, unless they further believe from the evidence that said notes have been paid, taken up, satisfied or extinguished. And in regard to this question of payment and satisfaction, the court further instructs the jury that payment or satisfaction is an affirmative defense, to be established by the defendant by a preponderance of the evidence. Hence, if the jury believe from the evidence that the defendant, Edler, was indebted to said Bernhard William Uchtmann, deceased, as aforesaid, then it devolves upon Edler, and the burden is upon him to show, by a preponderance of the evidence, that such indebtedness has been paid or satisfied.

Therefore, if the jury believe from the evidence that the defendant, Edler, was indebted to said deceased as aforesaid, and that there is no preponderance of proof in favor of Edler on the question of payment or satisfaction, or that the proof in regard thereto is equally balanced, or that the preponderance of such proof is in favor of the plaintiff, then in each of these three cases and contingencies just mentioned, the jury wi??il find that there was no payment or satisfaction.

2. For the plaintiff the jury are further instructed that, even if they do not believe from the evidence that the notes sued on were ever made by Edler, and ever had any existence, yet if they do believe from the evidence that before and at the time of the death of Bernhard William Uchtmann, deceased, the defendant, Edler,...