Oertel v. Schroeder

• Decision Date: 30 September 1868
• Citation: 1868 WL 5067,48 Ill. 133
• Parties: GEORGE OERTELv.JULIE SCHROEDER et al.
• Court: Illinois Supreme Court

48 Ill. 133

1868 WL 5067 (Ill.)

GEORGE OERTEL

v.JULIE SCHROEDER et al.

Supreme Court of Illinois.

September Term, 1868.

APPEAL from the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Chief Justice, presiding.

The material facts in this case are fully presented in the opinion.

Messrs. JUSSEN & BARBER, for the appellant.

Messrs. THOMPSON & LACKNER, and Messrs. WARD & STANFORD, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of assumpsit, brought by appellees in the Superior Court of Chicago, against appellant, for the recovery of the amount of a promissory note. The declaration contained a special count on the note and the common counts. To this declaration, appellant pleaded the general issue and two special pleas of the failure of the consideration for which the note was given. These pleas aver that the note was given on the purchase of the payee's interest in the property belonging to the firm of Siebert & Wœlffer; that defendant paid Siebert, for his interest in the property, four thousand dollars, and executed the note sued upon to him. That among the property thus sold, there was a quantity of lager beer which was represented and warranted by Siebert to be merchantable and saleable, and of the value of eight thousand dollars; that, relying upon the warranty, he purchased the undivided half of the property, and paid the four thousand dollars, and gave the note for the residue. The plea avers that the beer was not good, merchantable and saleable, but was, at the time, poor, unsaleable and unmerchantable, and was worthless, whereby the consideration had wholly failed.

To this plea, several replications were filed, by leave of court, traversing the various averments contained in the pleas. On leave granted, appellant filed another plea of failure of consideration, containing substantially the same averments as the second plea, and averred that the consideration of the note had failed to the full extent of the amount due and payable upon the face thereof. To this plea no replication was filed, but there was a stipulation that a replication need not be filed.

On the trial, it appeared that appellant purchased of Siebert his undivided half of a brewery, fixtures and utensils, together with the half of a quantity of lager beer, estimated to have been worth eight thousand dollars. At the time the purchase was made, Siebert seems to have represented the beer to be good and merchantable, when in fact about three-fourths of it was almost worthless. Siebert's partner testifies that if it had been good as represented it would have been worth between $8,000 and $9,000, when it was, in fact, worth not more than $2,000. It also appears that Siebert took appellant into the sale-room to test the beer, and had samples only drawn from casks containing good beer, giving directions to draw from particular casks. That a small portion was afterwards sold at a low price to the vinegar makers, and the remainder of the spoiled beer was permitted to run out and waste, as being worthless.

After the evidence was heard, appellees moved the court to exclude all of the testimony introduced on the part of the defense. The motion was allowed, and the evidence excluded. A verdict was found for appellees, and judgment was rendered on it for the sum found by the jury.

The stipulation to waive replications, left appellant the right to prove the averments of his pleas, precisely as if issue had been taken by replication. This, then, presents the question, whether the evidence introduced tended...