Oberne v. Gaylord

• Decision Date: 31 March 1883
• Citation: 13 Bradw. 30,13 Ill.App. 30
• Parties: GEORGE OBERNEv.C. W. GAYLORD ET AL.
• Court: United States Appellate Court of Illinois

13 Ill.App. 30

13 Bradw. 30

GEORGE OBERNE

v.C. W. GAYLORD ET AL.

Appellate Court of Illinois, First District.

March Term, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding. Opinion filed April 24, 1883.

Mr. HENRY V. FREEMAN, for appellant; that the court below exceeded its power in ordering the record of the judgment amended at a subsequent term, cited Long v. Linn, 71 Ill. 152; Wilcoxon v. Roby, 3 Gilm. 475; Bodine v. Swisher, 66 Ill. 536; Sattler v. The People, 59 Ill. 68; McCormick v. Wheeler, 36 Ill. 114; Greenleaf on Ev. § 115; Trau??nan v. Hills, 5 Bradwell, 396; Kirlholz v. Wolff, 8 Bradwell, 371; Lill v. Stookey, 72 Ill. 495.

Remote or speculative damages, such as result from injuries to credit, business, character, etc., by force of the attachment can not be recovered: Drake on Attachment, § 175; Donnell v. Jones, 13 Ala. 490; Reidhar v. Berger, 8 B. Monroe, 160; State v. Thomas, 19 Mo. 613; Floyd v. Hamilton, 33 Ala. 235; Campbell v. Chamberlain, 10 Ia. 235.

Where a verdict is grossly excessive, it will be set aside: Saddler v. Bean, 38 Ia. 684; Cutler v. Smith, 57 Ill. 252; Tripp v. Grouner, 60 Ill. 474; Becker v. Dupree, 75 Ill. 167; Kussell v. Jzevor, 2 Bradwell, 244.

As to amendment of bill of exceptions: Myers v. Phillips, 68 Ill. 269; Goodrich v. Minonk, 62 Ill. 125; Wallahan v. The People, 40 Ill. 104; Lyons v. The People, 68 Ill. 271.

Messrs. MOSES & NEWMAN, for appellees; cited Churchill v. Abraham, 22 Ill. 461; Gardner v. Haynie, 42 Ill. 291; Miner v. Phillips, 42 Ill. 123; 1 Greenleaf on Ev. § 522; Whitaker v. Wheeler, 44 Ill. 440; Corbley v. Wilson, 71 Ill. 209; Broom's Maxims, 917; Strohm v. Hayes, 70 Ill. 41; England v. Selby, 93 Ill. 340; Vanarsdale v. Andrews, 7 Bradwell, 199; Ives v. Vanscoyoc, 81 Ill. 120; Cogshall v. Beesley, 76 Ill. 445; Culliner v. Nash, 76 Ill. 515; Henry v. Halloway, 78 Ill. 356; Ferris v. Ferris, 89 Ill. 452; Noy v. Creed, 1 Bradwell, 557; Drury v. Dungan, 2 Bradwell, 15; Reynolds v. Palmer, 70 Ill. 288; Fuller v. Bates, 6 Bradwell, 442; Keller v. Fournier, 74 Ill. 489; Indianapolis, etc. v. Rhodes, 76 Ill. 285; Krug v. Ward, 77 Ill. 603; Protection, etc. v. Foote, 79 Ill. 361; Page v. The People, 99 Ill. 418.

Damages for the loss and deprivation of the property and discontinuance of the business may be recovered: Fitzsimmons v. Hall, 84 Ill. 539; Churchill v. Abraham, 22 Ill. 461; Alexander v. Jacoby, 23 Ohio, 358; Dunning v. Humphrey, 24 Wendell, 31; Donnell v. Jones, 13 Ala. 490.

MCALLISTER, J.

This action was debt brought in the court below, by appellees Gaylord and Wieland, as obligees, against the appellant, Oberne, as one of the joint and several obligors, in an attachment bond bearing date May 21, 1881, in the penal sum of twelve hundred dollars, and conditioned according to the statute prescribing such bonds. The principal obligors, in said bond were Bock and Muellner. Oberne was surety, and this suit was prosecuted against him alone. The declaration sets forth the bond, the suing out of the superior court, by Bock and Muellner of an attachment against Gaylord and Wieland, the levying thereof upon their goods, and assigns for breach that Bock and Muellner did not prosecute their attachment suit with effect, but that afterward, November 14, 1881, said superior court gave judgment against them, quashing said attachment with costs. The defendant Oberne filed the plea of non est factum, and the court made an order of record that defendant have leave to introduce special matter in evidence, on the trial, under the plea of non est factum. The trial resulted in a verdict and judgment for plaintiffs for their debt, with nine hundred and fifty dollars damages. The defendant brings the record to this court and assigns various errors.

The plea of non est factum, in the absence of a plea traversing the breach, put in issue only the making the bond described in the declaration; all other material averments were admitted. Sugden v. Beasley, 9 Bradwell, 71; King v. Sea, 6 Id. 189; Rudesill v. County Court of Jefferson county, 85 Ill. 446. Nor was that result affected by the leave given to defendant, to introduce special matter under that plea. Kane v. Sanger, 14 Johnson, 89. This point disposes of all the objections made by appellant as to the competency of evidence to prove the breach. The defendant, under the leave to introduce special matter in evidence, would have had the right to assume the burden of proof and introduce evidence to show that there was no breach. But this he did not offer to do. All the plaintiffs were required to do, in the first instance, was to produce the bond in evidence, and prove their damages. But, notwithstanding the condition of the pleadings, we think it is clearly the right of appellant to assign error upon any ruling of the court below which took from him the benefit of any matter proper to be considered by the jury, in mitigation of damages, or in denying him a ruling respecting a proper limitation of damages in such case.

It appears from Wieland's evidence that he made Gaylord's acquaintance on the 3d of May, 1881; that on the 5th of same month he entered into copartnership with him; that Gaylord then had stock of the value of $750 which he put into the firm, to this Wieland added about $500; that from this stock only two cases of shoes worth about $180 had been taken out, before the attachment was levied by Gaylord who absconded on the 16th of same month. The defendant gave evidence tending to show, that a few days prior to his partnership with Wieland?? Gaylord, who was carrying on the business of manufacturing shoes, was owing Forbes & Co. about fifty dollars, and being desirous of obtaining further credit from that firm, made an arrangement on the 4th of May, 1881, with such firm by which he was to give to them his note for $300 to be secured by a chattel mortgage on his tools, machinery, etc., and all his leather and manufactured goods, etc. The mortgage was executed, duly acknowledged and recorded, on the next day.

On the 5th of May, 1881, Forbes & Co., finding that mortgage defective in some particular, had Gaylord execute another to supply the defect, which was duly acknowledged and recorded on the 10th of same month. This mortgage covered all the tools, machinery, sewing machines, dies, rollers, lasts, benches, fixtures, etc., all leather manufactured or in process of manufacture in a certain building described. The evidence tends to show that this property was put by Gaylord into the capital of the firm of Gaylord & Wieland; that Gaylord kept on getting goods of Forbes & Co. on credit under that arrangement, so that, when he absconded, he owed them at least one hundred and thirty-seven dollars for such goods. Forbes & Co., May 20, 1881, sold and assigned said mortgage to one Marshall, and the latter, June 5, 1881, sold and assigned the same to Martin Bock, one of the principals in the attachment bond, and plaintiffs in the attachment suit. The debt secured was...