Parker v. Fisher
| Decision Date | 31 January 1866 |
| Court | Illinois Supreme Court |
| Parties | WALLACE PARKERv.FISHER, FULLER & CO. |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Scott county; the Hon. D. M. WOODSON, Judge, presiding.
This was a suit which was commenced August 1, 1864, in assumpsit by the appellees against the appellant. The declaration contained three counts. The first for money had and received; the second upon an account stated, and the third was for interest. The trial in the court below resulted in a judgment for the plaintiffs there, the appellees here, for one thousand dollars.
The evidence shows that in October, 1863, Wallace Parker was a warehouseman in Naples, and Joseph Fisher and the other appellees were buying corn there for shipment to St. Louis, and doing business themselves at Jersey Landing. In the fall of that year, the appellees bought a large lot of corn at Naples of one F. Brockmire, and made an arrangement with him that they were to send the money to him by the steamboat, “care of Wallace Parker.” The money was afterward sent from St. Louis, by J. G. Greer & Co., as commission merchants, by direction of appellees, in sealed packages and all directed to “Wallace Parker,” except one package of $1,600, which was directed to Mr. Brockmire, care of Wallace Parker. The dates and amounts and manner of sending, as follows:
Oct. 27, $1,000, by the packet “Nellie Rogers;” Oct. 31, $1,000, by the same boat; Nov. 9, $1,000, by the same boat; Nov. 14, $1,000, by the same boat; Nov. 21, $1,600, by the same boat, but directed to Brockmire, care of Parker; Dec. 10, $6,000, by express. The total amount of the money sent was $11,600. The clerk of the boat delivered to Parker all the packages which were sent by the boat, and understood from both parties that all the money sent was to pay Fred. Brockmire for corn bought of him by plaintiffs. Part of the evidence for the plaintiffs was an account commencing, “Messrs. Fisher, Fuller & Co., in account with Wallace Parker,” and admitted by Parker to be in his handwriting. This account is indorsed “F. Brockmire's bill, Dec. 12, 1863.” It consists of a bill of items for labor, and sacks, and twine, express charges, corn, storage, etc. The first item is dated Oct. 28, 1863, and the last Dec. 16, 1863. The main charges are Dec. 15, for corn at fifty and sixty cents a bushel. These amount to $9,469.40. The same day there is a charge of $193.94 for storage of corn. Finally, the charges against the plaintiffs end Dec. 16, with an item of ““cash paid Mr. Pickard, $827.11.” The whole amount charged is $10,600, of which $10,490.45 is formed by the corn, storage and cash, and the balance is made up of a large number of small items of the character above indicated. On the other side, that account credits “Fisher, Fuller & Co., by cash paid to F. Brockmire,” in the following dates and amounts: Oct. 28, $1,000; Nov. 2, $1,000; Nov. 16, $1,000; Nov. 23, $1,600; Dec. 10, $6,000; total, $10,600.
The plaintiffs below claimed that they had sent to Parker a thousand dollars more than he had accounted for, and this suit was brought to recover that sum, and the interest. The case was given to the jury, March 14, 1865, with an agreement by both parties that the jury might seal their verdict, when they should agree upon one, deposit it with the clerk and disperse. On the meeting of the court next morning, the clerk handed the sealed verdict to the court, the calling of the jury was waived by both parties, and the court read the verdict in the absence of all the jury.
The verdict was in these words: “We, the jury, find a verdict for the plaintiffs for the sum of one thousand dollars and interest.” Plaintiffs moved to have the jury recalled and the case recommitted, which motion was overruled. Plaintiffs then asked for leave to remit all of the verdict except one thousand dollars, and asked a judgment for that amount. The court, against the exception of the defendant, allowed the motion and judgment was so rendered. Motions by the defendant for a new trial and to set aside the verdict were overruled, and he now prosecutes this appeal.
Mr. H. J. ATKINS, and Messrs. MORRISON and EPLER, for the appellant.
Mr. ALBERT G. BURR, for the appellees.
This was an action of assumpsit in the Circuit Court of Scott county, brought by Joseph Fisher, Edmund M. Fuller and Philander Pickard, a firm doing business under the name of Fisher, Fuller & Co., against Wallace Parker.
The declaration contains three counts, the first for money had and received by the defendant of the plaintiffs; the second for money found due on an account stated; and the third count for interest for the forbearance and use of divers sums of money.
The general issue was pleaded and a trial by jury. It was agreed by the parties that the jury might seal their verdict, deposit it with the clerk and separate.
On the following morning, at the meeting of the court, a sealed verdict, left with the clerk, was delivered to the court, and the parties being asked if they wished the jury called, and replying in the negative, the court opened and read the verdict in the absence of the jury, which was as follows: “We, the jury, find for the plaintiffs for one thousand dollars and interest.” The plaintiffs thereupon moved the court to have the jury called and the case recommitted to them, which motion the court denied. The plaintiffs then moved the court for leave to remit all of the verdict except one thousand dollars, and to withdraw all claim for interest, and that judgment might then be entered on the verdict for one thousand dollars. This motion the court allowed, and the defendant excepted, and thereupon entered a motion for a new trial, assigning as a reason that the verdict was contrary to the evidence, and because the court gave improper instructions to the jury for the plaintiffs, and because of allowing plaintiffs' remittitur, and because the verdict was not entire, and a finding on all the issues in the case.
The court denied the motion and rendered judgment for one thousand dollars, to all which the defendant excepted and appeals to this court, and assigns this action of the Circuit Court as error.
Upon the last point made, the general issue was to all the counts in the declaration, and a general verdict is an answer to all the counts. A verdict for one thousand dollars would comprehend the principal sum sued for, and the interest on that sum, if the interest was specially claimed in a separate count. It is a finding to the effect that, taking into consideration the claims of the plaintiffs as set forth in the three counts of the declaration, they are entitled, upon the whole, to one thousand dollars, and no more. This is the legal effect of the verdict, and is a legal finding on the only issue presented by the pleadings, for there was but one issue, and that was, was the defendant indebted to the plaintiffs by reason of any agreement, promise or undertaking of his, and if so, in what amount? A verdict finding one thousand dollars is responsive to this issue, without disposing specially of the count for interest.
Now, as to the points in their order: The first is that the verdict is contrary to the evidence.
The facts are that defendant was a warehouseman at Naples, and had bought and stored corn on plaintiffs' account to a...
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