Morris v. Jamieson
| Decision Date | 26 October 1903 |
| Parties | MORRIS v. JAMIESON et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Appellate Court, First District.
Action by Nelson Morris against M. M. Jamieson and others. From a judgment in favor of defendants, affirmed by the Appellate Court (99 Ill. App. 32), plaintiff appeals. Affirmed.
Dupee, Judah, Willard & Wolf, for appellant.
Francis A. Riddle and James E. Munroe, for appellees.
May 30, 1896, appellant sued Malcolm M. Jamieson and others, constituting the firm of Jamieson & Co., in the circuit court of Cook county, in assumpsit. The declaration consists of the common counts only, and includes counts on an account stated, a count for interest, and a count for money had and received. Defendants pleaded the general issue. At the conclusion of the evidence for the plaintiff, the court, on motion of the defendants, excluded the plaintiff's evidence, and directed the jury to find the issues for the defendants. An appeal was prosecuted to the Appellate Court for the First District, where the judgment of the circuit court was affirmed, and this appeal is prosecuted. The suit was for an alleged balance due from defendants to plaintiff. The only evidence produced on the trial was certain documents and letters, and the testimony of Charles E. Davis, secretary of appellant. Appellant assigns error of the Appellate Court in affirming the judgment of the circuit court and rendering judgment against appellant, and in not reversing the judgment of the circuit court and remanding the cause. But two propositions are argued: First, that the circuit court erred in directing the verdict for appellees; and, second, that the action would lie upon the common counts for money had and received. These are the only matters material to be considered in this case.
RICKS, J. (after stating the facts).
The position taken by the appellees, and evidently entertained by the trial and Appellate Courts, is that the action in question could not be maintained under the common counts, and, there being no evidence that would warrant a verdict and judgment under such counts, the instruction asked was given. If the action could not be had under the common counts, then it is conceded that the instruction should have been given, and to properly determine whether it was necessary that the declaration should contain special counts upon the case, or whether the common counts were sufficient, it will be necessary to review the evidence.
The appellees were brokers in Chicago, and as such brokers or agents dealt in stocks, and appellant was a trader in stocks for profit. About December 1, 1892, appellant directed appellees to sell 1,000 shares of Street's Stable Car Line stocks (hereafter called ‘Street stock’) for the sum of $29,000, deliverable to the purchaser within 60 days. This stock appellant did not own, and the sale is what is called a ‘short sale.’ Before the time for the delivery of this stock, Jamieson & Co., at the request of appellant, did what is termed ‘borrowing the stock’ for appellant for delivery on his contract of sale, and paid to the lender of the stock $30 per share, or in all $30,000, for the loan of the stock, and delivered the stock to the purchaser about January 31, 1893, and on the latter date sent to appellant a written report of the transaction. Davis, the only witness, testified that the business relations between appellant and appellees, which began some time in 1892 and were terminated in June or July, 1893, involved the purchase and sale of about 16,000 shares of stock, but that all the stock transactions between the parties, except the one of December 1, 1892 above mentioned, were fully settled, and that the last-named transaction is the only matter involved in this litigation. Reference is made to other transactions for the reason that, in various statements rendered by appellees to appellant, other matters appear, and, without some explanation, might be confusing.
Eight statements made by appellees to appellant of the account between them, in so far as it related to the stock involved in this suit, were offered in evidence by appellant. The first statement introduced in evidence was that of date January 31, 1893, and is as follows:
This statement was inclosed with a letter, which appellant did not offer in evidence at the time he offered the statement, but upon direct and cross examination, Davis, the secretary of appellant, who testified that he had entire charge of the stock transactions between appellant and appellees, testified that Upon cross-examination the witness testified that Plaintiff's Exhibit No. 1, above set forth in this opinion, came to Nelson Morris inclosed in a letter written by appellees to appellant, dated January 31, 1893, which he identified, and which letter contained the statement: The witness Davis testified that the word ‘flat,’ used in the letter above quoted from, means without interest. He also testified that appellees borrowed the stock at the request of appellant to deliver in this short sale, and that he supposed appellees furnished the money to borrow it; that Nelson Morris never gave his check for it, or paid for it.
The eight statements made by appellees to appellant of the transaction in question, and offered in evidence by appellant, were made at the end of each of the months of January, February, March, April, May, June, July, and August, 1893. It will not be necessary to incorporate in this opinion all these statements, but the following will be sufficient:
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Gerill Corp. v. Jack L. Hargrove Builders, Inc.
...in virtue of the common law jurisdiction of the court, to a civil remedy which is not an action of contract.' " (Morris v. Jamieson (1903), 205 Ill. 87, 105, 68 N.E. 742, quoting F. Pollock, Law of Torts 4.) Clearly, the problems courts and commentators have had in defining the term indicat......
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Lawson v. G. D. Searle & Co.
...by the defendant, that a party may not use aspects of an evidentiary whole and then seek to exclude the rest (cf. Morris v. Jamieson, 205 Ill. 87, 68 N.E. 742; Boudinot v. Winter, 190 Ill. 394, 60 N.E. 553) or on a theory akin to that of 'curative admissibility' (See, e.g., McCormick on Evi......
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