Wolf v. Chicago Sign Printing Co.

• Court: Illinois Supreme Court
• Writing for the Court: CARTWRIGHT
• Citation: Wolf v. Chicago Sign Printing Co., 233 Ill. 501, 84 N.E. 614 (Ill. 1908)
• Decision Date: 23 April 1908
• Parties: WOLF v. CHICAGO SIGN PRINTING CO.

233 Ill. 501

84 N.E. 614

WOLF

v.CHICAGO SIGN PRINTING CO.

Supreme Court of Illinois.

April 23, 1908.

Appeal from the Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; John Gibbons, Judge.

Action by Fred W. Wolf against the Chicago Sign Printing Company. From a judgment of the Branch Appellate Court affirming a judgment for plaintiff, defendant appeals. Reversed and remanded.

Chester Firebaugh and Henry W. Huttmann, for appellant.

Scott, Bancroft & Stephens, for appellee.

CARTWRIGHT, J.

Fred W. Wolf, appellee, brought this suit in assumpsit in the circuit court of Cook county against the Chicago Sign Printing Company, appellant, and his declaration consisted of the common counts, to which a plea of the general issue was filed. There was a jury trial, and at the close of all the evidence the defendant moved the court to direct a verdict in its favor. The court denied the motion and the defendant excepted. The plaintiff then moved the court to direct a verdict in his favor, and the court granted the motion, and instructed the jury to find the issues for the plaintiff and assess his damages at $4,000, with interest thereon at 5 per cent. from August 19, 1902. The defendant excepted to the granting of the motion and giving the instruction. A verdict was returned, in accordance with the direction of the court, for $4,716.66, and the court, after overruling motions for a new trial and in arrest of judgment, entered judgment on the verdict. The Branch Appellate Court for the First District affirmed the judgment.

The defendant is a corporation with a capital stock of $5,000. In 1902 Ernest Salmstein was president and Albert H. Ernecke was secretary and treasurer of the corporation. The stockholders had considered the question of increasing the capital stock from $5,000 to $25,000, and Salmstein and Ernecke had tried to induce the plaintiff to subscribe for part of the increase, but no proceedings had been taken for such increase. On August 18, 1902, Ernecke obtained from plaintiff a check, payable to the defendant, for $4,000, and the proceeds were received by the defendant the next day. The suit was for the money represented by the check, with interest, and the disputed question of fact was whether the money was loaned by plaintiff to defendantor was a partial payment upon an agreement to subscribe for $9,500 of capital stock when an increase should be effected. At the time the check was delivered the following receipt was left with the plaintiff:

‘Chicago, 8/18, 1902.

‘Received of Fred W. Wolf the sum of four thousand dollars ($4000) account Chicago Sign Printing Co.

‘A. H. Ernecke,

‘Secy. and Treas. Chicago Sign Printing Co.

‘$4000.00.

8/18, 1902.

‘The above amount is part payment on stock in above concern to be issued shortly.

‘A. H. Ernecke.’

The evidence for the defendant was that this entire paper expressed the agreement between the parties, and that it was all written when the check was given. The evidence for the plaintiff was that he had refused to take any stock, but agreed to and did loan the money to the corporation; that the receipt was written; and that the recital that the money was part payment on stock was added without his knowledge by Ernecke, and the paper was left lying on the plaintiff's table. There was a special meeting of stockholders held September 20, 1902, at which they voted in favor of the proposed increase. In October or November, 1902, plaintiff wanted something to show for his money, but refused to take any stock, and claimed that he never agreed to do so. A certificate was made out for 95 shares of the capital stock for plaintiff, but he refused to take any stock, and the whole scheme for an increase was abandoned. The plaintiff never received any notice of any stockholders' meeting, and never attended any such meeting.

The assignment of error to which the argument is devoted is that the court erred in instructing the jury to return a verdict for the plaintiff, and especially in directing an assessment of interest from the date of the check. In answer to the argument on that question it is contended that, each party having moved the court to direct a verdict in favorof such party, they waived the right to submit any question to the jury, and elected to submit the case to the court for its decision, both upon the law and the facts. Section 60 of the practice act (Laws 1907, p. 456) provides for the waiver of a jury trial and a trial by the court of both matters of law and fact in case both parties shall so agree, and in the event of such agreement section 61 provides for submitting written propositions to be held as the law in the decision of the case, and section 82 provides for taking exceptions to decisions of the court either relating to receiving improper or rejecting proper testimony or to the final judgment upon the law and evidence. There was no such waiver of a jury trial in this case, and if the right to a verdict of the jury upon the facts was waived it was only by implication, and this court has not recognized any waiver of the kind insisted upon here.

When the practice of demurring to the evidence fell into disuse and that of making a motion that the court direct a verdict was substituted, some difference arose in the decisions of the different courts as to the nature and effect of such a motion, but the ground of the motion and the practice have been thoroughly settled in this state. The motion to direct a verdict raises only a question of law as to the legal sufficiency of the evidence to sustain a verdict against the party making the motion. Angus v. Chicago Trust & Savings Bank, 170 Ill. 298, 48 N. E. 946;Rack v. Chicago City Railway Co., 173 Ill. 289, 50 N. E. 668,44 L. R. A. 127;Marshall v. Grosse Clothing Co., 184 Ill. 421, 56 N. E. 807,75 Am. St. Rep. 181;Martin v. Chicago & Northwestern Railway Co., 194 Ill. 138, 62 N. E. 599. In the event of an adverse ruling on the motion to direct a verdict, an exception preserves the question of law for the consideration of an appellate tribunal. The submission of a question of fact to the jury does not waive the question of law already passed upon by the court where the rights of the party have been properly preserved. Chicago Union Traction Co. v. O'Donnell, 211 Ill. 349, 71 N. E. 1015;Illinois Central Railroad Co. v. Swift, 213 Ill. 307, 72 N. E. 737;Chicago Terminal Transfer Railroad Co. v. Schiavone, 216 Ill. 275, 74 N. E. 1048.Some courts have held that where both parties ask the trial court to direct the verdict it amounts to a request that the court shall find the facts and a waiver of any right to the judgment of the jury upon controverted questions of fact. The Supreme Court of the United States held to that doctrine in Beuttell v. Magone, 157 U. S. 154, 15 Sup. Ct. 566, 39 L. Ed. 654, and...