Hill v. Parsons

• Decision Date: 19 May 1884
• Citation: 110 Ill. 107,1884 WL 9855
• Parties: EDWARD J. HILL et al.v.JOHN D. PARSONS et al.
• Court: Illinois Supreme Court

110 Ill. 107

1884 WL 9855 (Ill.)

EDWARD J. HILL et al.

v.JOHN D. PARSONS et al.

Supreme Court of Illinois.

Filed at Ottawa May 19, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. R. S. WILLIAMSON, Judge, presiding.

Mr. E. J. HILL, for the appellants:

The court erred in ignoring the testimony as to defects in the books, and the damages arising therefrom. Peck v. Brewer, 48 Ill. 54; Burroughs v. Clancy, 53 Id. 30.

The account for the price of the books was closed by promissory notes, it is true, but does this show a settlement of all claims and differences between the parties? Waterman v. Clark, 76 Ill. 428; Ramsey v. Tully, 12 Bradw. 463.

The execution of a promissory note is not evidence of a settlement of all accounts between the parties prior to the date of the note. Ankeny v. Pierce, Breese, 225; Crabtree v. Rowand, 33 Ill. 421; White v. Jones, 38 Id. 159; Rosencrantz v. Mason, 85 Id. 262; Phy v. Clark, 35 Id. 37; Eddie v. Eddie, 61 Id. 134; Rayburn v. Day, 27 Id. 46; Archibald v. Argall, 53 Id. 307; Borchsenius v. Canutson, 100 Id. 82.

There is no account stated here. The doctrine of account stated has no application except between merchant and merchant. 1 Greenleaf on Evidence, sec. 197; Miller v. Bruns, 41 Ill. 293.

The testimony as to the damages for the delay, which was offered, should have been received. Ramsey v. Tully, 12 Bradw. 463. Mr. CHAS. L. EASTON, for the appellees:

The testimony of appellant Hill, when he attempted to show contracts of sales without producing them, they being in writing, was properly excluded. Priestly v. N., Q. and C. R. R. Co. 26 Ill. 205; Olmstead v. Burke, 25 Id. 86; Moline Water Power Co. v. Watriss, 10 Bradw. 159; Sedgwick on Measure of Damages, chap. 24, sec. 575; 1 Chitty's Pleading, 397.

Appellees insist that the notes upon which the judgment was obtained are evidence of an account stated between the parties, and it is incumbent upon the appellants to show what the items of the account were, and that some one or more of them were erroneous. Phy v. Clark, 35 Ill. 377; White v. Jones, 38 Id. 159; Crabtree v. Rowand, 33 Id. 421; Rosencrantz v. Mason, 85 Id. 262; Eddie v. Eddie, 61 Id. 134; Niles v. Harmon, 80 Id. 403; Wickenkamp v. Wickenkamp, 77 Id. 94; Morrison v. Smith, 81 Id. 221; Straubher v. Mohler, 80 Id. 21; Gore v. Campbell, 4 Bradw. 661; Ritchie v. Cherist, 8 Id. 534; Moline Water Power Co. v. Watriss, 10 Id. 159.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action brought by appellees, surviving members of the firm of Weed, Parsons & Co., against Edward J. Hill and Henry S. Austin, upon two promissory notes, amounting in the aggregate to $1350, and interest from the date of the notes. These notes, with others, were given in settlement of an account between the firm of Weed, Parsons & Co. and appellant Hill, for printing and binding a certain number of the four volumes of “Hill's Illinois Digest.” To the declaration the defendants pleaded, first, the general issue, with affidavit of merits; second, set-off as to volume 1, for delay, etc., claiming special damages; third, set-off as to volume 2, for delay, etc., claiming special damages; fourth, set-off as to volume 3, for delay, etc., claiming special damages; fifth, set-off as to volume 4, for delay, etc., claiming special damages; sixth, set-off for delay, etc., as to the two hundred and eighty sets under order of January 11, 1882, claiming special damages; seventh, set-off common counts for money had and received, etc., claiming, specially, the payment for the five hundred and fifty-nine hours, and the overcharge above contract price of thirty-three cents per page for volumes 2, 3 and 4; and eighth, an additional plea of recoupment for unskillful workmanship, and damages for breach of implied warranty, etc., claiming special damages. On a trial of the cause in the Superior Court, before a jury, a verdict and judgment were rendered in favor of the plaintiffs for the full amount of the notes sued upon, and, on appeal, that judgment was affirmed in the Appellate Court.

As to the delay in the completion of the work, complained of, the evidence tended to prove that it was mainly caused by defendants' failure to pay. In regard to the overcharges on volumes 2, 3 and 4 beyond contract price, the evidence tends to prove that a new agreement was made, and that Hill agreed to pay the amount claimed as an overcharge,--and, indeed, such claim of set-off was met with testimony which would authorize the finding of the jury. But in addition to the evidence alluded to, the testimony tended to establish, to the satisfaction of any reasonable jury, that the notes sued upon were given in settlement of a balance due plaintiffs after all the supposed causes of...