Montgomery v. Black

• Decision Date: 18 January 1888
• Citation: 124 Ill. 57,15 N.E. 28
• Parties: MONTGOMERY et al. v. BLACK et al.
• Court: Illinois Supreme Court

124 Ill. 57

15 N.E. 28

MONTGOMERY et al.

v.BLACK et al.

Supreme Court of Illinois.

January 18, 1888.

Appeal from appellate court, Third district.

Ira M. Moore, for appellants.

McMurry & McMurry and Bonney & Woods, for appellees.

This was an action of assumpsit, brought in the Adams circuit court by appellants against William L. Black, Samuel N. Black, and Charles C. Connor on a promissory note of $100, and a balance of overdraft in bank of $1,038.02. The note was signed ‘W. L. Black & Co.,’ and the overdraft was in the name of the same firm and to its debt. The declaration contains three counts, and the consolidated money count. The first and second counts were upon the promissory note; and the third, upon the same instrument, treated as a contract. The declaration charged that the said William L. and Samuel N. Black and Connor were partners under the name and style of W. L. Black & Co., and, as such, made such note and overdraft, and were liable therefor. William L. Black was not served. Samuel N. Black and Connor each filed a separate plea in abatement, duly verified, denying their joint liability with each other, or with their co-defendant, W. L. Black. Replications were filed traversing these pleas, and a trial had on the issue thus presented, without the intervention of a jury, which resulted in finding the issues for the defendants, appellees here, and judgment thereon for cost against appellants. No propositions of law were presented to the lower court to be held or refused. On appeal to the appellate court of the Third district, the judgment was affirmed, and this further appeal is prosecuted by the plaintiffs below.

SHOPE, J., ( after stating facts as above.)

The declaration alleged that William L. Black, Samuel N. Black, and Charles C. Connor were partners under the firm name and style of William L. Black & Co., and that said firm made the undertakings and promises therein alleged, and were indebted to the plaintiff as therein mentioned. The pleas put in issue the partnership and joint liability of Samuel N. Black and Charles C. Connor severally, for the undertakings and promises of said firm of W. L. Black & Co. to plaintiffs in the declaration mentioned. No other issue is presented by the pleadings. The issue of fact thus formed was submitted to the court, without a jury, for trial. In such cases it is competent for the parties to obtain the decision of the circuit court upon all questions of law arising upon the facts, by presenting to the court propositions of law, to be held or refused as provided by section 42 of the practice act. By pursuing this course, the rulings are preserved in the record in the same way they are preserved by instructions in trials by jury. The presumption is in favor of the legality of the judgment of the lower court, and he who insists that error has intervened in the proceedings of the court must make such error manifest by the record. Appellants, having failed to preserve the rulings of the court, as might readily have been done in the mode provided by the statute, are in no better position to question the correctness of such rulings, in this court, than if they had submitted their case to a jury without instructions. It will, in civil cases, be presumed that the law was correctly applied to the facts by the jury, or the court sitting as a jury, unless the record affirmatively shows to the contrary. Tibballs v. Libby, 97 Ill. 552;Hobbs v. Ferguson's Estate, 100 Ill., 233;Steinman v. Steinman, 105 Ill. 349.

The judgment of the appellate court, affirming the judgment of the circuit court, must, in the absence of a finding of fact by the appellate court, be treated in this court as conclusively settling all controverted questions of fact, necessary to the maintenance of the judgment, adversely to appellants. Brownell v. Welch, 91 Ill. 523;Bank v. Proctor, 98 Ill. 558;Kreigh v. Sherman, 105 Ill. 49;Steinman v. Steinman, supra; Paddon v. Insurance Co., 107 Ill. 196.In such cases we are permitted to look into the bill of exceptions only for the purpose of determining whether the circuit court in its rulings, properly preserved, committed error; and whether the case has proceeded according to the orderly course of the law. The facts having been settled beyond question, with no right of review by this court, to be adverse to the right of recovery by appellant, and the presumption being that the law was correctly applied, it follows that the judgment of the appellate court must, under the errors here assigned, be affirmed, unless error is shown in the exclusion or admission of evidence. Very many points are made by counsel for appellant upon particular facts appearing in the record; as that by a certain fact appellees are estopped from denying that the firm name of the firm of which they were members was W. L. Black & Co.; that the declarations of W. L. Black, put in evidence by appellant, as to the name of the firm, and who composed it, as a matter of law made his contract with plaintiff in the name of said firm binding upon appellees; and others of like purport.

The contention last referred to will serve to illustrate as to all others. Stated in the language of counsel, the proposition is...