Winslow v. Newlan

• Decision Date: 30 September 1867
• Citation: 1867 WL 5236,45 Ill. 145
• Parties: LAWSON A. WINSLOW et al.v.THOMAS NEWLAN et al.
• Court: Illinois Supreme Court

45 Ill. 145

1867 WL 5236 (Ill.)

LAWSON A. WINSLOW et al.

v.THOMAS NEWLAN et al.

Supreme Court of Illinois.

September Term, 1867.

APPEAL from the Court of Common Pleas of the city of Aurora; the Hon. R. G. MONTONY, Judge, presiding.

This was an action on the case, brought by Thomas Newlan and James Hennessy, the appellees, against Lawson A. Winslow and Stephen C. Gillett, the appellants, for deceit, in the Court of Common Pleas of the city of Aurora. On the trial in the court below, the jury found for the plaintiffs, and assessed their damages at $2,284. A motion for a new trial being overruled, a judgment was rendered upon the verdict. The defendants appealed to this Court.

The facts upon which the opinion is based are sufficiently stated therein.

Messrs. WAGNER & CANFIELD, for the appellants.

Mr. C. J. METZNER, for the appellees. Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears that Hennessy, one of the plaintiffs, entered a motion to dismiss the suit, but the other plaintiff resisted the application, and the motion was overruled. It may be asked, how appellants can assign this for error. They did not enter the motion, and it only was a decision against one of the plaintiffs. If they by collusion procured Hennessy to enter the motion, then it was a fraud upon Newlan, that the court would not aid in consummating. Again, it may well be doubted whether one of several joint plaintiffs has the power, against the objections of the other, to dismiss a suit, unless he can satisfy the court that the latter has no interest in the claim, or that he is liable to be injured by its further prosecution, and even then he has no such right if his co-plaintiff shall indemnify him against loss. In such a case, the motion is at most without authority, unless it be where husband and wife sue jointly, and when resisted a necessity must be shown for it, or the motion will not be allowed. There was no error in refusing to dismiss the suit in this case, as proper indemnity was given.

The record in this case is voluminous, and several errors are assigned and urged upon the hearing, which are not presented by the abstract filed. Of this character is the objection to Buck's evidence on the ground of interest. But we have looked into the record and find that sufficient releases were executed by the parties to render him competent. But if this were not so, it fails to appear that any exception was taken and preserved, to its admission. In the absence of such an exception, we cannot be asked to review the decision of the court below.

The exception taken, to what Buck said Jackman & Allen assigned as the reason for not paying the money claimed to be due for a machine they had bought, was immaterial. We do not see that it could have influenced the jury in finding their verdict. Again, if it was represented, as alleged, that the money was due, and would be paid when called for, and payment was not thus made, it was proper for the jury to know whether it was from inability or other cause, and whether other reasons were assigned for not paying. If appellants feared that it might mislead, they should have asked a properly prepared instruction.

It is insisted that the court erred in refusing to exclude Buck's testimony from the jury, on the grounds of his interest, and because appellees had declared for a joint fraud by appellants, and that from the evidence, if a fraud was committed, it was by but one of appellees. We have seen that Buck was not disqualified by interest. Again, this is an action for tort, and it is a rule of practice coeval with our system of jurisprudence, that a plaintiff may recover against as many, and only such, defendants as he proves to be guilty, in this form of action. If sued in the same action they could not be charged in the declaration otherwise than jointly. It would therefore have been error for the court to have excluded this evidence. It would have been proper to instruct the jury that if one of the appellees did not participate in the fraud, they should find for him. There is no force in this objection.

Under the uniform and repeated decisions of this court, it is too late to object to mere matters of form to depositions on the trial. To permit such a practice would be to entrap the party offering them. If formal objections exist they should be taken and settled on exceptions before the trial, so that if they are sustained, the party in whose favor they are taken, may otherwise procure the evidence of the witness on the trial, or retake his deposition. The objection to Jackman's deposition, as to the sufficiency of the notice, came too late on the trial. Objections to the substance or pertinency of the evidence could only be taken at that stage of the case.

In the case of Miller v. Neimerick, 19 Ill. 172, this court held, that the statements, whether written or verbal, of one of several partners, made after a dissolution of the firm, although relating to its business before the dissolution, are incompetent to charge the other members of the firm. After a dissolution each member of the prior firm ceases to be an agent for the others, and is powerless to contract a debt, or create a liability binding on the firm, and hence cannot bind it by admissions. Nor do we see any distinction or reason for a different rule, when the admissions sought to be used are made by either a plaintiff or defendant. In either case the reason is the same. A co-plaintiff, after a dissolution of a partnership, is no more an agent of his co-plaintiff, than is such a defendant of the other members of the dissolved...