Mandell v. Miller

• Decision Date: 12 September 1957
• Docket Number: Gen. No. 11060
• Parties: Jack MANDELL, d/b/a State Roofing and Siding Co., Appellee, v. Ernest L. MILLER, Appellant.
• Court: United States Appellate Court of Illinois

Page 791

144 N.E.2d 791

14 Ill.App.2d 430

Jack MANDELL, d/b/a State Roofing and Siding Co., Appellee, v. Ernest L. MILLER, Appellant.

Gen. No. 11060.

Appellate Court of Illinois, Second District, First Division.

Sept. 12, 1957.

Harold R. Nettles, Freeport, for appellant.

Russell J. Goldman and Harold Stern, Rockford, for appellee.

SPIVEY, Justice.

This is an appeal from the County Court of Ogle County granting judgment for plaintiff notwithstanding a verdict of the jury in favor of the defendant. Plaintiff, the operator of a roofing and siding business, brought an action alleging a contract with the defendant, home owner, wherein the defendant was said to have agreed to pay $1,600 to have his farm home covered with aluminum siding. The defendant denied the contract and as an affirmative defense to the complaint alleged; that he advised the plaintiff before the installation of any siding on the house that a foreclosure suit to foreclose a mortgage in favor of the Lutheran Brotherhood was pending; that after the foreclosure sale the plaintiff agreed to look to the purchaser at the foreclosure sale if the defendant failed to redeem; that plaintiff had filed a mechanics lien and had taken no further action; and that he, the defendant, had advised the plaintiff that L. E. Lazavus was the purchaser at the foreclosure sale and was the person to whom the plaintiff should look for payment. Plaintiff in his reply to the defense admitted that he had filed a mechanics lien and admitted that he had taken no further action to foreclose the lien but denied all the other affirmative matter.

Plaintiff's case was founded upon a contract which was signed by the defendant and provided in addition to the terms of the job, that the instrument was the exclusive agreement between the parties, verbal or otherwise. This instrument was admitted in evidence and according to the terms, required the defendant to pay $153.30 in 'quarterly successive monthly installments.'

Defendant when called by the plaintiff as an adverse witness testified that the contract was only to be effective in the event the loan for which he applied went through. An application for a property improvement loan taken by the plaintiff from the defendant was offered in evidence by the plaintiff, and showed among other things that the defendant listed a mortgage in favor of the Lutheran Brotherhood as one of his obligations, and that at the time the application was signed he was $1,450 in arrears on the mortgage. The defendant was unable to secure the loan for the improvement, and no part of the $1,600 was paid by the defendant.

Plaintiff testified that he had several conversations with the defendant about payment and stated that the defendant agreed to pay the full price on several occasions. Further, plaintiff contended that he had no knowledge of the mortgage foreclosure sale until advised by the defendant in 1956 and denied that he agreed to look to the purchaser at the foreclosure sale, if the defendant failed to redeem. The foreclosure sale was held on December 29, 1954, which was the date that plaintiff completed the job on the home.

It was contended by the defendant that when the contract and loan application were signed, plaintiff's agent, who did testify, stated that if the loan went through, they would put the siding on. A few days after the signing, however, work was started even though no report on the loan application was received. According to defendant's testimony, the plaintiff came to defendant's home before the work was completed and advised that the loan had been refused because of the mortgage to the Lutheran Brotherhood. The plaintiff was said to have known about the foreclosure suit and advised the defendant that if he lost the farm, the plaintiff would collect from the purchaser. In defendant's last conversation with the plaintiff, plaintiff was said to have stated that he was secure with his mechanics lien. The defendant denied making any promise to pay unless it was conditional upon his securing a loan. Defendant's testimony was corrobated to some extent by his wife who testified that she was present during some of the conversations with the plaintiff or his agent.

A verdict of not guilty for the defendant was returned by the jury and judgment was entered thereon. Subsequently, plaintiff filed his post trial motion wherein he asserted: that the verdict was contrary to the manifest weight of the evidence; that the verdict evinced passion and prejudice on the part of the jury; and that evidence of an oral contract was contrary to the parol evidence rule and incompetent and irrelevant.

Plaintiff requested a judgment notwithstanding the verdict or in the alternative, a new trial. The court granted judgment notwithstanding the verdict but did not rule upon plaintiff's requested new trial. Thereafter, defendant filed a timely post trial motion requesting judgment on the verdict, or in the alternative, a new trial, and this motion was denied. From the judgment notwithstanding the verdict, the defendant appeals, contending that the action of the court in granting plaintiff's post trial motion was contrary to law and that there was evidence with its intendments most favorable to the defendant, upon which the verdict of the jury could be founded. Defendant also contends that the plaintiff waived any objection to incompetent evidence by failing to make timely objections. It is also urged that the trial court erred in failing to rule conditionally upon the portion of plaintiff's motion requesting a new trial.

We have carefully searched the record and fail to find any objection lodged by the plaintiff to the admission of the alleged incompetent evidence. Also we find nothing in the record which would be of an inflammatory nature so as to have prejudiced this plaintiff. Even if there were such incompetent evidence in the record, the plaintiff must be held to have waived the objections by failing to make proper and timely objections.

In People v. Trefonas, 9 Ill.2d 92, 136 N.E.2d 817, 820, it was stated,

'The function of the objection is, first, to signify there is an issue of law, and secondly, to give notice of the terms of the issue. An objection to the admission of evidence, to be available, must be made in apt time, or it will be regarded as waived. The general rule is that the admission of incompetent evidence must be objected to, if at all, at the time of its admission. Objections to evidence should designate the particular testimony considered objectionable and point out the objectionable features complained of. Failure to make proper and timely objection to the admission of evidence claimed to be incompetent or otherwise objectionable or to move to strike it out after its admission, giving specific reason for the objection or motion to strike out such evidence generally constitutes a waiver of the right to object and cures the error, if any. Likewise, objection to the admission of other secondary evidence or the contents of a written instrument or record is waived by failure to object that it is not the best evidence. A party cannot sit by and permit evidence to be introduced without objection and upon appeal urge an objection which might have been obviated if made at the trial'.

This same point was raised in Ascher Bros. Amusement Enterprises v. Industrial Comm., 311 Ill. 258, 142 N.E. 488, 489, and there the court stated,

'The abstract of the record shows no objection made to the testimony as to the statements made by the deceased. These statements were hearsay and incompetent, but, being received without objection, they are to be considered and given their natural probative effect, as if they were in law admissible. Steel Sales Corp. v. Industrial Comm., 293 Ill. 435, 127 N.E. 698, 14 A.L.R. 274; Damon v. Carroll, 163 Mass. 404, 40 N.E. 185; Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500; Schlemmer v. Buffalo, Rochester & Pittsburg Railroad Co., 205 U.S. 1, 27 S.Ct. 407, 51 L.Ed. 681. Incompetent evidence, when not objected to, may be received and given such probative value as it naturally carries. People ex rel. v. Waite, 237 Ill. 164, 86 N.E. 572; Lindquist v. Dickson, 98 Minn. 369, 107 N.W. 958, 6 L.R.A.,N.S., 729.'

The conclusion that we must reach on this point, then, is that the evidence should be considered in determining the propriety of the trial court's ruling on plaintiff's motion for judgment notwithstanding the verdict. If the evidence, even though alleged to be incompetent with its intendments most favorable to the defendant, tended to prove the defendant's case, then the court erred in granting plaintiff's post trial motion.

While the evidence of the oral agreement to vary the terms of the written agreement would clearly be incompetent under the parol evidence rule, the evidence incompetent for one purpose may be competent for another purpose. Under the pleadings, the issues developed were whether there was a contract in existence or whether the parties had substituted a new agreement for the original contract signed. Defendant denied the execution of the contract and so under the general denial of the contract and the defense pleaded, evidence that the contract was conditional upon securing a loan to pay for the improvement, and evidence of the substitution of a new agreement to look to the purchasers at the foreclosure sale, rather than the defendant, would not vary the terms of the original contract, but rather would establish that there was a conditional or new contract. Defendant's evidence tended to indicate that there was an agreement between the parties to the effect that the plaintiff would look to the purchaser at the sale if defendant did not redeem. With reference to this defense, the offered evidence was not incompetent by reason of the parol evidence rule for the evidence did not seek to vary the terms of a written agreement but constituted some evidence that there had...