First Nat. Bank of El Paso v. Miller

• Decision Date: 18 June 1908
• Citation: 85 N.E. 312,235 Ill. 135
• Parties: FIRST NAT. BANK OF EL PASO v. MILLER et al.
• Court: Illinois Supreme Court

235 Ill. 135

85 N.E. 312

FIRST NAT. BANK OF EL PASO

v.MILLER et al.

Supreme Court of Illinois.

June 18, 1908.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Livingston County; G. W. Patton, Judge.

Action by the First National Bank of El Paso against M. L. Miller and another. From a judgment for defendants, plaintiff appealed to the Appellate Court, and, from a judgment of affirmance, it appeals to the Supreme Court. Affirmed.A. C. Norton, for appellant.

Thomas Kennedy, John F. Bosworth, and McIllduff & Thompson, for appellees.

CARTER, J.

This was an action in assumpsit on a promissory note for $1,000 and interest, brought by appellant, as assignee before maturity, against M. L. Miller as maker and H. B. McGregor as indorser, jointly, under the negotiable instrument act (Hurd's Rev. St. 1905, p. 1407, c. 98), which authorizes all or any number of parties to be sued in one action on a promissory note, either as makers or indorsers. Section 7b of that act provides for entering judgment by default against certain defendants and the severing and proceeding to trial against the others. In this case a default appears to have been taken, but no judgment entered, against McGregor, the indorser, and the suit proceeded; the jury being sworn to try the issues against appellee Miller alone. Judgment not having been entered against McGregor, the jury should have been sworn to try the issues joined and assess the damages against him. McDonald v. Fairbanks, Morse & Co., 161 Ill. 124, 43 N. E. 783. No question, however, was raised on this point.

Appellant's brief and argument in this case consist substantially of a review of the Appellate Court opinion, with no separate and distinct statement of facts and brief of authorities. Attached to and bound in the same cover with the brief is a copy of the brief and argument filed in the Appellate Court. Counsel states that this is not in accord with the rules of this court, but says the appeal was consummated such a short time before the April term of court that he either had to do this or ask for an extension of time in which to file briefs. Lack of time furnishes no excuse for a plain violation of the rules. The reason for not filling the Appellate Court brief as the brief in any case in this court is manifest from the situation here. The judgment of the trial court on the verdict was affirmed by the Appellate Court. Under numerous decisions of this court the judgment of the Appellate Court, under such circumstances, is final and conclusive as to all controverted questions of fact. Boyce v. Tallerman, 183 Ill. 115, 55 N. E. 703;Chicago & Alton Railroad Co. v. Flaherty, 202 Ill. 151, 66 N. E. 1083;Alexander v. Loeb, 230 Ill. 454, 82 N. E. 833. The brief in the Appellate Court is largely a discussion of these controverted facts; hence a needless burden is placed upon us to sift from it what is properly reviewable by this court.

The evidence shows that McGregor who resided at Pontiac, came to El Paso, Woodford county, Ill., and opened an office in an upper room of a building known as the ‘Hendron Block.’ In the room were placed a few chairs and benches, a telephone, a telegraph instrument, and an operator, and a blackboard, on which were placed market quotations in stocks and grains. He had no elevator or scales of any kind, and the proof tends to show that he had no grain about the office. He circulated cards representing himself as the manager of the Corn Belt Commission Co., corespondents of the Hammond Elevator Co. of Hammond, Ind.-‘I bid for Indianapolis Grain Co., Indianapolis, Ind., and Thomas S. Clarke & Sons, Baltimore, Md.’ He solicited business from various people, promising that it should be kept strictly secret. The evidence tends to show that most of the dealings were on margins or options, without any intention of receiving the grain brought or delivering the grain sold, although there is testimony that he did deliver or receive some grain. The customer deposited with McGregor from one to three cents a bushel; additional margins being required from time to time if the market went against him. Appellee Miller is a retired farmer living in El Paso. McGregor, then a stranger to him, met him on the street in El Paso, and told him he was doing a commission business and solicited his patronage. Miller testified that McGregor said the transaction would be considered strictly confidential; thathe was to be known as No. 27, so that, if any one got hold of McGregor's books or papers, his name would not be known. McGregor deniessome of these statements, but the proof shows that Miller and others transacted their business by number instead of in their own names. Blank forms of orders to the Corn Belt Commission Company were offered in evidence by appellant, and others were offered by appellee, some of which were signed ‘27’ and others ‘M. L. Miller, per Mc.’ Miller's first deal with McGregor was December 7, 1904, and the last was May 15, 1905. On two of these deals he made a profit of $65.63. Notes were given by Miller at different times to keep up his margins, and on March 9, 1905, he signed the note here in question, payable to McGregor. At that time he was carrying 14 deals, involving over 100,000 bushels of grain, amounting in value to between $75,000 and $100,000.

Appellant's declaration contained special counts on the note and the common counts. Appellee Miller filed pleas to the special counts, but did not join issue as to the common counts. Appellant requested the court, at the close of the evidence, to give an instruction directing a verdict, and it is now claimed that a verdict should have been directed on the common counts. The record does not show that any question was raised as to the irregularity in not formally joining issue as to the common counts, either at the time the motion was made to direct a verdict or at any other time during the trial. The law is settled that, if parties go on with the trial without formally joining issue, this irregularity is waived after verdict. Brazzle v. Usher, Beecher's Breese, 35. When the plaintiff waives the right to take default or to rule the other party to plead and proceeds to trial, he is estopped to urge the want of a plea, and must be held to have consented to try the case the same as if the general issue had been filed. Loomis v. Riley, 24 Ill. 307;Hewetson v. City of Chicago, 172 Ill. 112, 49 N. E. 992. Miller testified that he had no intention of delivering or receiving the grain in any of these transactions, and that McGregor told him no delivery need be made, but that the deals would be closed by settling the differences between the price at the time the option was bought or sold and at the time of settlement. McGregor was asked if he ever made such a statement to Miller. He answered: ‘No, sir; nor to nobody else.’ The court, on motion of appellee, struck out all but the first two words of the answer. A sufficient reply to the contention that this ruling was erroneous is that that part of the answer was not responsive to the question, and was properly excluded on that ground.

It is strongly insisted that the court should not have permitted Miller to introduce evidence showing similar transactions in options, margins, or futures by McGregor with persons other than Miller. Miller's intentions alone in these transactions will not render them illegal. In order to do taht, it must appear that neither party had the intention to deliver the property, but that both had the intention of settling on the differences only. This intention may be established, not only by their assertions, but by all the attending circumstances of the transaction. The question of intention is a question for the jury or the court on a consideration of all the evidence. The intention of parties in such cases may be determined from the nature of the transactions and the method of carrying on the business. Pratt & Co. v. Ashmore, 224 Ill. 587, 79 N. E. 952;Pope v. Hanke, 155 Ill. 617, 40 N. E. 839,28 L. R. A. 568;Jamieson v. Wallace, 167 Ill. 388, 47 N. E. 762,59 Am. St. Rep. 302. While appellant admits this general doctrine, it is insisted that none of these decisions go to the extent of holding that the transactions between other parties may be shown. McGregor insisted in his testimony that he intended to deliver or receive grain in these transactions. His intention therefore became a material and vital question in the case-substantially the gist of the action. The conclusion that such evidence as to other transactions with third parties, at and about the time of the transactions in question, may be introduced to show the character of the transactions is fairly deducible from what this court said in Jamieson v. Wallace, supra, and Pratt & Co. v. Ashmore, supra. Even in criminal cases, where the intent is an essential ingredient, this court has held that it was competent to show that one on trial for procuring an abortion was in the habit of performing or had solicited such work. Olark v. People, 224 Ill. 554, 79 N. E. 941. We think it was competent, for the purpose of showing the nature of these transactions, to prove by other witnesses that they had similar transactions with McGregor at about the same time, but the period of time to be covered by this evidence must rest largely in the discretion of the trial court. In Gardner v. Meeker, 169 Ill. 40, 48 N. E. 307, it was held that evidence of similar acts three months after the acts in question was relevant. Transactions with third parties testified to in this case were all within the time that Miller was carrying on these transactions with McGregor; that is, between December 4, 1904, and May 15, 1905. The note in question was given March 9, 1905. We think this evidence was competent.

Appellant contends that the trial court committed error in allowing evidence to be introduced as to McGregor dealing in ‘puts' and ‘calls.’ None of the witnesses appear...