#### John Heidelmeier, Appellee, v. Helena Hecht, Appellant.

Gen. No. 14,195.

1. Practice—proof required in assumpsit against joint debtors in absence of plea denying joint liability. Notwithstanding no plea denying joint liability is interposed in an action of assumpsit, yet there can be no recovery by the plaintiff unless the evidence shows the joint liability of all the defendants to the action.

2. Assumpsit—when joint liability does not appear. Held, that the evidence in this case did not show joint liability by the several defendants joined in the action.

Baker, J., dissenting.

*117Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1907.

Reversed and remanded.

Opinion filed December 4, 1908.

A. G. Dicus, for appellant.

Todd & Morrison, for appellee'.

Mr. Justice Chytraus

delivered the opinion of the court.

Heidelmeier, appellee, brought this action of assumpsit in the Municipal Court against Sigmund Hecht and Helena Hecht, husband and wife. The action is for services rendered by Heidelmeier in procuring a purchaser for certain real estate. The common counts and a joint plea of general issue constitute the pleadings. The case was heard by the court without a jury. The issues were found for the plaintiff and a judgment rendered against both defendants for $1,435.28. From that judgment Mrs. Helena Hecht prosecutes this appeal.

Heidelmeier, an art glass manufacturer, testified that he had known the Hechts for fifteen or eighteen years and had done all the glass work on the premises in question. About a year after that work was done Hecht by telephone requested Heidelmeier to call at Hecht’s office. When Heidelmeier called there Hecht said he had heard Heidelmeier knew someone who desired to buy the property in question, adding: “You know that is the property where you furnished all the glass work for me—on my building on Evanston avenue.” Heidelmeier, among other things, then replied: “Mr Hecht, I am not in the real estate business ; I am in the glass businessI would like to get that in writing; in black and white that you will give me $1,500 if I sell the building, and I will try and sell it”. An agreement in writing was then made which in so far as material is as follows:

*118‘ ‘ Chicago, Feb. 4, 1907.

Mb. John Heidelmeier :

Dear Sir:—

If you will sell or close a trade for building * * *, I will pay you fifteen hundred dollars commission ($1500) as soon as said sale or trade is completed by you.

Tours truly,

Sigmund Hecht”.

Through the procurement of Heidelmeier a trade or exchange was made.

It appears that Mrs. Hecht owned the property and that Mr. Hecht attended to the renting thereof. So far as we can see from the record there was no communication between Heidelmeier and Mrs. Hecht in respect to this matter. The contract of exchange made was signed “Helena Hecht by Sigmund Hecht, Sigmund Hecht”, and in pursuance thereof a deed was subsequently executed by Mr. and Mrs. Hecht.

This action of assumpsit against Sigmund Hecht and Helena Hecht, jointly, is predicated upon that writing, the performance by Heidelmeier, the fact of ownership of the property by Helena Hecht and the making and carrying out of the contract as stated. In such an action as this the law is the same whether two persons made joint defendants be husband and wife or not, so far as the necessity for proving a joint liability is concerned. By the mere joining of a person as a party defendant a plaintiff cannot create a liability which does not otherwise exist. Express assumpsit is an undertaking made orally, by writing not under seal, or by matter of record, to perform an act or to pay a sum of money to another. There is here no pretense of an express joint promise by Mrs. Hecht. Implied assumpsit is an undertaking presumed in law to have been made by a party .from his conduct, although he has not made any express promise. Such an undertaking is never implied where the party has made an express promise. Here Sigmund Hecht has *119made an express promise. Futhermore, his express promise is inconsistent with the theory of a joint obligation. The law sometimes presumes promises for parties where their acts and conduct justify the presumption, but it never creates promises for parties in square conflict with their acts or conduct. We find no evidence in the record of a joint undertaking on the part of Sigmund Hecht and Helena Hecht. If any question of an undisclosed principal exists in this case we do not wish to be understood as expressing any opinion thereupon.

No plea in abatement was filed, nor did Helena Hecht file any plea in bar denying joint liability. Hence it is contended she cannot be heard to deny joint liability and reliance is placed upon section 35 of the Practice Act to sustain this contention. That section provides that in actions against two or more defendants as partners, joint obligors or payors, proof of joint liability shall not in the first instance be required. Were the question an open one we could not take away the effect of the incorporation of those words “in the first instance” in the statute and read it as if those words were not there. Those words are words of restriction and limitation upon what would be the effect of the statute if those words were not there.

But the question is not an open one. In Imperial Hotel Company v. Claflin Company, 175 Ill. 119, the Hotel Company and A. C. Mills & Co., corporations, were sued jointly. They were held jointly liable by the trial court and the judgment was affirmed in the Appellate Court. The Supreme Court said: “The ground of reversal urged in the Appellate Court was, that the Superior Court erred in holding that the plaintiffs in error were joint debtors and jointly liable * * * . In the trial court there was no plea denying the joint liability, but it was insisted the evidence showed there was no joint liability”. And, later, in holding that the judgment could not be sustained, the *120court said: “No liability existed in favor of the H. B. Claflin Company against both these defendants as joint debtors. In an action ex contractu against several it must appear that their contract was joint, and that fact must be averred by the pleadings and shown by the proof on the trial, otherwise no recovery can be had; and this is the rule where the evidence shows the contract is several, although none of the parties have put their joint liability in issue by a plea in abatement or a plea in bar verified by an affidavit”. To the same effect and fully as strong we find United Workmen v. Zuhlke, 129 Ill. 298, 303, and Powell v. Finn, 198 Ill. 567. In the latter ease it is said: “It is also well settled that, even in the absence of a plea denying joint liability, the evidence must show such liability as to all of the defendants in order to entitle the plaintiff to a judgment”.

This court has repeatedly laid down the same rule. Davison v. Hill, 1 Ill. App. 70, is in point. Therein the court, after stating that it was there claimed that by this section of the Practice Act the common law rule which, in actions ex contractu requires the cause of action to be established against all the defendants or there can be no recovery against any, had been changed, said: “We think the statute sufficiently radical in its innovations upon well established principles, without according to it so broad a scope as that”. Speaking approvingly of this case last cited this court in Martin v. Trainer, 125 Ill. App. 474, said: “In the case of Davison v. Hill, 1 Ill. App. 70, it was held that section 36, now under discussion, did not require the filing of a plea denying joint liability, verified, when it affirmatively appears that parties are made defendants against whom no joint cause of action is shown”. Martin v. Nelson, 53 Ill. App. 517, is precisely in point to the same effect. It is there held that notwithstanding this provision of the statute if it affirmatively appears from the plaintiff’s evidence or is made to appear by the defendant’s evidence, that *121there is no joint liability, the joint action is then defeated. There are several other decisions to the same effect. Whatever language this court may have used in Touhy v. Daly, 27 Ill. App. 459, indicating that the section of the statute now under consideration has laid upon a joint defendant the burden of proving no joint liability, which is a negative, when no plea in abatement or verified plea in bar denying joint liability has been filed, must be regarded as overruled. The later decisions of our Supreme Court as well as of this court must be followed.

For the error indicated the judgment of the Municipal Court is reversed and the cause is remanded.

Reversed and remanded.

Mr. Justice Bakes dissenting.