Swift & Co. v. Dollahan

• Decision Date: 07 June 1954
• Docket Number: Gen. No. 9949
• Citation: 120 N.E.2d 249,2 Ill.App.2d 574
• Parties: SWIFT & CO. v. DOLLAHAN et al.
• Court: United States Appellate Court of Illinois

Page 249

120 N.E.2d 249

2 Ill.App.2d 574

SWIFT & CO. v. DOLLAHAN et al.

Gen. No. 9949.

Appellate Court of Illinois, Third District.

June 7, 1954.

H. F. Simonson, Richard W. Paterson, Champaign, for appellants.

Thomas & Mulliken, Champaign, for appellee.

REYNOLDS, Presiding Justice.

This is an action at law to recover for money loaned and claimed to be due. The complaint consisted of two counts, not expressly stated to be in the alternative. In Count I plaintiff sought recovery upon a written instrument, attached to the complaint as an exhibit and incorporated in Count I, purporting on its face to be a promissory note of defendants dated January 9, 1951 in the sum of $2,050, payable to the order of plaintiff and bearing interest at the rate of 6% per annum. Count II erroneously described in plaintiff's brief as a common count, was a demand for repayment of $2,050 allegedly loaned on January 9, 1951 by plaintiff to defendants and not repaid despite demand, together with interest at 6% per annum. The cause was tried before a jury which returned a verdict for defendants on Count I and for plaintiff on Count II. The court entered judgment on the verdict for defendants on Count I and after remittitur of $276.34 for plaintiff on Count II in the amount of $2,065.52. Defendants' motion for a directed verdict as to Count II, upon which motion the court had reserved its ruling, was denied, as were defendants' alternative motions for judgment notwithstanding the verdict, in arrest of judgment and for new trial. Thereupon defendants appealed from the judgment against them and from the denial of their post-trial motions. No post-trial motions were filed with respect to, and no appeal was taken by plaintiff from the judgment in favor of defendants.

Plaintiff alleged in Count I that on January 9, 1951, it loaned defendants the sum of $2,050 and thereupon defendants delivered their promissory note in the amount payable to plaintiff's order and bearing interest at 6% per annum. A copy of the alleged note was attached as an exhibit and by reference thereto, made a part of Count I. The document was received in evidence on the trial. It is a printed form of note and provides in pertinent part:

'I, (We) jointly and severally, promise to pay to the order of Swift & Company, a corporation, at Decatur, Illinois for value received the sum of Two Thousand Fifty and No/100 Dollars in the following installments:

'Surcharge of Twenty Cents (20cents) per gallon on all bulk and package, plus a volume discount of Fifteen Cents (.15cents) per gallon on bulk and Ten Cents (.10cents) on package on ice cream purchased until note is paid.

'With all costs of collection including ___ per cent attorneys fee if collected by law or through an attorney.

'Each of the aforesaid installments shall bear interest at the rate of Six (6%) percent per annum from date until paid.

'Should default be made by me (us) in the payment of any installment, as above provided, then the entire balance remaining due and unpaid upon said note shall at the option of the holder hereof forthwith become due and payable * * *.

* * *

* * *

'Vaughn E. Dollahan (Seal)

'(Maker's Signature)

'Elizabeth L. Dollahan (Seal)

'(Maker's Signature)'

It was alleged that plaintiff was the owner of the note; that it was entitled to reasonable attorney's fee in the sum of $200 for effecting collection of the note; that no part of the principal had been paid; that interest had accrued put was unpaid; and that the unpaid principal and interest were past due. There were no allegations with respect to acceleration of the note or the matter of default, if any, on the part of the defendants in making installment payments as provided in the instrument, or any other materal breach on the part of defendants, giving rise to a right in plaintiff to compel payment in a lump sum and in cash.

In Count II, which was characterized by the pleader as an 'additional' count, plaintiff alleged the making of a loan to defendants on January 9, 1951 in the sum of $2,050; that thereupon defendants promised to repay the same upon demand with interest at the rate of 6% per annum from the date of the loan; that on August 14, 1952 plaintiff made demand upon defendants for payment of the loan with interest, without avail; and that the principal amount of the loan and interest thereon was due and unpaid. No reference was made in Count II to the alleged note attached to the complaint as an exhibit and incorporated in Count I.

Each count prayed for judgment in the sum of $2,281.74. Defendants moved to strike and dismiss the entire complaint. The motion made no distinction between the two counts. While defendants claim in their briefs in this court that the complaint, especially Count II, is defective in various respects, the only ground, other than a general statement that the complaint was not plain and concise, urged in the motion to dismiss was that the complaint was predicated on the instrument attached as an exhibit to Count I; that the instrument was by its terms payable in installments by means of ice cream purchase surcharges and discounts; that no facts were pleaded in explanation of the apparent failure of plaintiff to effect collection of the note pursuant to its terms; and that the action was prematurely brought.

Defendants' assertion in their motion, repeated and argued at length in their briefs in this court, that Count II, as well as Count I, was predicated upon the instrument attached as an exhibit to Count I, could not be availed of by motion to dismiss. Count II did not refer to the exhibit and was on its face a statement of a claim separate and distinct from that stated in Count I, and was complete in itself without reference to the exhibit attached to and limited to Count I. On motion to dismiss the sufficiency of Count II was properly tested without reference to Count I or the exhibit thereto. In so far as defendants sought by their assertions in their motion to dismiss to characterize Count II as one based on the exhibit, they were relying upon alleged matters of fact de hors the pleading and thus were guilty of pleading facts and demurring at the same time. Elliott v. Illinois Central R. Co., 318 Ill.App. 112, 119, 47 N.E.2d 375. A motion to dismiss, as was true of the demurrer under our former practice, raises only a question of law as to the legal sufficiency of the pleading to which it is directed. All well pleaded allegations of fact are admitted by the motion. Beadles v. Servel, Inc., 344 Ill.App. 133, 138, 100 N.E.2d 405. Since the facts stated in the pleading are admitted by the motion, the maker of the motion cannot at the same time controvert the admitted facts, either by assertions in his motion or by affidavit or other means. Matters of fact may be presented only by answer or by motion for summary judgment or in an appropriate case (of which the action here involved is not one), by motion under Section 48 of the Civil Pracice Act. Hansen v. Raleigh, 391 Ill. 536, 548, 63 N.E.2d 851, 163 A.L.R. 1425.

The motion to dismiss was properly denied as to Count II. Though somewhat abbreviated, Count II stated the essentials of a cause of action within the requirements of the Civil Practice Act. (Civil Practice Act, Secs. 4, 31, 33, 42, Smith-Hurd Anno.Stats., ch. 110, pars. 128, 155, 157, 166.) In any event, it was not vulnerable to the ground of alleged defect asserted in defendants' motion to dismiss. We express no opinion upon the action of the court in overruling the motion to dismiss Count I. Defects, if any, in that count are immaterial and academic in this court inasmuch as the judgment as to that count was not only in favor of defendants but no appeal was taken from the judgment.

Defendants did not stand by their motion to dismiss but elected to file an answer to both counts. In answer to Count I they denied that there had been a loan but admitted that they had signed the instrument attached as an exhibit to Count I and denied that it was a 'promissory' note. They averred that by the express terms of the instrument it had been agreed that they were to pay plaintiff the sum of $2,050, not in a lump sum or in cash, but only in installments by means of surcharge and discount credits on purchases of ice cream to be made by them from the plaintiff. They further averred that concurrent with the execution by them of the alleged note, the plaintiff had agreed to and in fact did furnish defendants with certain ice cream storage and dispensing equipment to enable defendants to store and dispense ice cream to be purchased from plaintiff; but that plaintiff had subsequently wrongfully repossessed the equipment in a replevin suit, thus making it impossible for defendants to repay the principal sum advanced to them by the purchase of ice cream from plaintiff as provided in the alleged note.

Although the judgment in favor of defendants on Count I is not before us on this appeal, we have stated the substance of that count and of defendants' answer thereto because defendants rest several of their contentions with respect to Count II upon the premise that the judgment as to Count I is res judicata of the issues as to Count II.

In their answer to Count II defendants denied they had made a loan from plaintiff as alleged but admitted that plaintiff had advanced $2,050 toward the purchase by them of equipment to be used by them to establish a business for the storage, dispensing and sale of ice cream to be purchased by them from plaintiff. They admitted that plaintiff had made demand upon them for payment of the $2,050. They further averred that the $2,050 advance was made upon and subject to the terms and conditions for payment recited in the exhibit attached to and made a part of Count I of the complaint. The averments of their answer to Count I respecting the furnishing and the subsequent allegedly wrongful repossession by plaintiff of ice cream storage and dispensing equipment, were...