Martin v. Hertz

• Decision Date: 22 December 1906
• Citation: 224 Ill. 84,79 N.E. 558
• Parties: MARTIN et al. v. HERTZ.
• Court: Illinois Supreme Court

224 Ill. 84

79 N.E. 558

MARTIN et al.

v.HERTZ.

Supreme Court of Illinois.

Dec. 22, 1906.

Appeal from Appellate Court, First District.

Action by Henry L. Hertz, coroner, for the use of W. F. McLaughlin & Co., against Nicholas Martin and others. From a judgment of the Appellate Court (118 Ill. App. 297), affirming a judgment for plaintiff, defendants appeal. Affirmed.

Musgrave, Vroman & Lee, for appellants.

Harlan & Harlan, for appellee.

VICKERS, J.

W. F. McLaughlin & Co. recovered a judgment against Q. W. Loverin and George J. L. Janes for $1,168.71 and costs of suit, which judgment was affirmed by the Appellate and Supreme Courts. 46 Ill. App. 373, 161 Ill. 417, 44 N. E. 99. An execution was issued on this judgment, and delivered to the sheriff, who levied the same on the interest of George J. L. Janes in certain goods, and Ernest H. Janes thereupon replevied the goods as belonging to him individually, and gave bond in the penal sum of $40,000, being double the value of the property as sworn to by him in the replevin affidavit. The appellants were the sureties on the replevin bond. The replevin writ was served by the coroner, who took possession of the goods in question, and delivered the same to Ernest H. Janes. On the trial of the replevin suit the issue was whether or not the goods belonged to Ernest H. Janes as an individual, as he contended, or to the firm of Janes Bros. & Co., composed of George J. L. Janes and Ernest H. Janes. This issue was decided against Ernest H. Janes by the jury. In addition to the general verdict, there were special findings to the effect that the property belonged to the partnership. The court rendered an alternative judgment upon this verdict, that the plaintiff return the property within 10 days, and that in default of such return the defendant have and recover from the plaintiff the sum of $1,427.94, being the amount of the judgment, with interest and costs, for which the property had been levied upon by virtue of the execution, and that the defendant have execution therefor. This judgment was affirmed by the Appellate and Supreme Courts. 68 Ill. App. 611, 168 Ill. 627, 48 N. E. 177. The principal obligor in the replevin bond, Ernest H. Janes, having died, the present action was brought in the superior court of Cook county against the sureties on the replevin bond by Henry L. Hertz, coroner, for the use of W. F. McLaughlin & Co., the breach assigned in the declaration being the failure of Ernest H. Janes to return the property, or to pay the money part of the alternative judgment, with interest and costs. A jury was waived, and the cause was tried by the court. Upon the trial the court refused to admit certain evidence offered by the appellants, and refused to hold certain propositions of law requested by the appellants. The finding and judgment were for the appellee for the money part of the alternative judgment, with interest and costs. The judgment of the trial court has been affirmed by the Appellate Court for the First District, and the case is now before us on appeal from that judgment of affirmance.

The abstract shows that counsel for the appellants asked George J. L. Janes, when on the witness stand, what was the financial condition of the firm of Janes Bros. & Co.; but the abstract shows no exception to the ruling of the court sustaining an objection to this question, for which reason that ruling is not before us for consideration. Thereupon counsel for appellants made this offer: ‘Now, in order to get the case clearly before the court, we offer to show by the witness that the firm of Janes Bros. & Co. was insolvent at the time of the levying of the execution, and remained so, and about six months after the replevin action was commenced they made an assignment for the benefit of creditors, and that the assets of the firm paid about thirty cents on the dollar.’ The offer to prove that the firm was insolvent was but an offer to prove a conclusion, and so the objection of the appellee on the ground of incompetency, irrelevancy, and immateriality was properly sustained. ‘Insolvency’ has been defined as a general inability to answer, in the course of business, the liabilites existing and capable of being enforced. Best v. Fuller & Fuller Co., 185 Ill. 43, 56 N. E. 1077, adopting the opinion of the Appellate Court in the same case reported in 85 Ill. App. 500. Another definition is that insolvency, as applied to a person, firm, or corporation engaged in trade, is inability to pay debts as they fall due in the usual course of business. Atwater v. American Exchange Nat. Bank, 152 Ill. 605, 38 N. E. 1017. It is not unusual for merchants to buy goods on time, expecting to meet the obligations thereby incurred, as they mature, out of the sale of the goods purchased. Such merchants may be perfectly solvent, because of their ability to pay these obligations as they fall due in the usual course of business, although a forced sale of goods at any particular time might not produce an amount of cash equal to the aggregate of present and future liabilities. The question of the solvency of the firm may depend upon many facts and circumstances, such as the amount of liabilities and the time of their maturity, and the amount of the assets, and the value thereof. Hence, the offer to prove insolvency is an offer to prove a mere conclusion, and should not be allowed against objection. The offer should be to prove facts tending to show insolvency, that the court may see whether or not the facts offered in proof have any relevancy to the question. It has been so held as to a general statement concerning the delivery of a deed (Burnap v. Sharpsteen, 149 Ill. 225, 36 N. E. 1008); also as to a statement that certain persons were married by a rabbi on a certain occasion (Sokel v. People, 212 Ill. 238, 72 N. E. 382); also as to testimony that there was a full assignment of a note and mortgage (Barrett v. Hinckley, 124 Ill. 32, 14 N. E. 863,7 Am. St. Rep. 331).

In Lucas v. Beebe, 88 Ill. 427, a witness was asked the question as to what was the consideration of the bond on which the suit had been brought, and it was held that the question did not call for facts, but simply for the conclusion of the witness as to a legal proposition; that the question should have called for the specific facts and circumstances entering into and constituting the transaction, and that an objection to the question was properly sustained by the trial court. Thereupon the appellants in that case offered to prove by the same witness that there was no consideration for the bond; that the consideration had entirely failed, and that it had partially failed, and it was held that the offer was too general, not specifying what the witness would state or the specific facts which could be proved by the witness; that it was an offer to prove a mere conclusion of law, and was for that reason properly denied...