{
  "id": 878215,
  "name": "Margaret Maloney, Appellee, v. Mark F. Madden et al., Appellants",
  "name_abbreviation": "Maloney v. Madden",
  "decision_date": "1910-03-17",
  "docket_number": "Gen. No. 14,988",
  "first_page": "271",
  "last_page": "275",
  "citations": [
    {
      "type": "official",
      "cite": "153 Ill. App. 271"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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    {
      "cite": "180 Ill. 191",
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      "case_paths": [
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    {
      "cite": "230 Ill. 544",
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      "reporter": "Ill.",
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  "last_updated": "2023-07-14T16:18:18.031918+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Margaret Maloney, Appellee, v. Mark F. Madden et al., Appellants."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Freeman\ndelivered the opinion of the court.\nThis is an action upon the common counts, in which plaintiff\u2019s demand was for the sum of $557.89. She makes affidavit that this is the amount due her. In addition to the general issue the defendants pleaded the statute of limitations. Subsequently the plaintiff filed an amended bill of particulars. A jury returned a verdict in plaintiff\u2019s favor for $1,033.84, which was reduced to $1,000 by remittitur, and judgment entered for that sum.\nThere is evidence tending to show the plaintiff placed $1,000 in the defendants\u2019 hands in December, 1896, to be loaned. She had previously paid them $400 for the same purpose. She testifies that in March following defendants told her they had a place upon which to loan her money and took her out to see the property. She states she was led to suppose her money was to be loaned on the place as security, and consented to that being done, but denies she consented to the purchase and denies she knew at the time that it was being made. She says she was afterward informed she had bought the property and that the money of her\u2019s in defendants\u2019 hands as her agents had been applied on the purchase. The deed conveying the property to plaintiff is dated March 12, 1897. Defendants deny any deception in the matter and produce a paper signed by plaintiff, dated February 26, 1897, as follows:\n\u201cMadden Bros.\nKindly buy for me the property 1425 Dunning street and apply to the purchase of same the money you hold belonging to me.\nMargaret Maloney.\u201d\nThey state they had in their hands at that time $775 belonging to plaintiff which they applied on the purchase. The consideration was $3,350. The conveyance was subject to an encumbrance of $2,000, and to make up the balance of the purchase price defendants p.1 aim that plaintiff agreed to turn over a note of theirs for $400 and another note for $225, which with the $775 in defendants\u2019 hands would more, than make up the full amount of the consideration. Instead, however, of paying the full amount in money, defendants arranged with the grantor to take a lot in Grossdale subdivision belonging to them, which lot they state was charged to plaintiff at $600 and not at $900, the price which defendants received for it from the plaintiff\u2019s grantor in payment of the purchase price for the property. The grantor testified that he received from the defendants for the Dunning street property $375 in cash and that the lot at Grossdale \u201cwas taken in the deed at a consideration of $900.\u201d Defendant\u2019s claim that plaintiff knew all about these transactions, that she expressed no dissatisfaction, and employed defendants as her agents to collect the rents, make repairs on the house and pay interest until in December, 1898, when she desired to sell the premises and found the property could not be disposed of at once; that she then expressed great dissatisfaction, insisted defendants should pay her back the purchase price and threatened criminal and civil proceedings if they did not.\nDefendants contend the court erred in entering judgment for an amount greater than the amount claimed in plaintiff\u2019s bill of particulars, in the admission of evidence and in submitting to a jury under the pleadings the question of the identity of the present cause of action with that in a former suit brought before the statute of limitations had become a bar. As to the first of these contentions, it appears the bill of particulars was amended to state that \u201cthe plaintiff\u2019s claim is for balance of money deposited with said defendants and now retained by them and for the difference between the real and actual purchase price of property purchased by said defendants for plaintiff. \u2019 \u2019 We are of opinion that notwithstanding some ambiguity, the amended bill of particulars sufficiently informed the defendant as to the nature of the claim. McKinnie v. Lane, 230 Ill. 544-548.\nIt is true, however, that the identity of the cause of action was a question of law for the court and not of fact for the jury. Gibbs v. Crane Elevator Co., 180 Ill. 191-194-5, and cases there cited. In the case referred to the court quotes from Fish v. Farwell, 160 Ill. 236-243, as follows: \u201cThe interpretation and construction to be placed upon pleadings is a question of law for the court and not a question of fact for the jury. It would be absurd and a confusion and destruction of the law, to submit to the decision of a jury the matter of the legal identity of the several causes of action which are alleged in the pleadings in a cause.\u201d Defendants\u2019 plea of the statute of limitation was replied to by plaintiff. This replication was demurred to, the demurrer was sustained, and leave given to plaintiff to amend. The amended replication is to the effect that suit on the claim had been begun within five years, that subsequently an involuntary non-suit had been suffered and that the present suit is for the same cause of action and was commenced within one year after the involuntary non-suit, and concluded to the country. Instead of demurring, the defendants joined issue upon the replication. The question of the identity of the cause of action was, as we have said, for the court alone; but its submission to the jury was at the most superfluous and not harmful. The court itself apparently found that \u201cthis suit is for the same cause of action\u201d as the former..\nIt is urged in behalf of plaintiff that defendants as plaintiff\u2019s agents \u201chad no right to make any profit out of the trade\u201d by which plaintiff acquired the Dunning street property. Defendants\u2019 own testimony tends to show that they were allowed $900 for the G-rossdale lot when they turned it in to the grantor of the Dunning street property in lieu of that amount of plaintiff\u2019s money, and they rendered plaintiff a statement of the transaction in which they credit her with money or its equivalent in their hands amounting to $1,471.57 and charge her with the full $1,350 as having been paid by them to the grantor for his equity in the Dunning street property. But they did not pay that amount. They actually paid only $450 and turned in the Grossdale lot of their own for the balance of $900. If the lot was put in for more than it was worth, then the transaction was a fraud on plaintiff by her agents to the extent of the excess. The grantor testifies that at that time \u201cthe lot had a valuation of $300.\u201d The defendants\u2019 evidence tends to show it was worth $900. They state, however, that it \u201cwas put in at $600\u201d and that \u201cthe commissions, accrued interest and all that, made up to $900.\u201d What these commissions and other expenses were and to whom paid they do not explain. The burden is on them to account for the plaintiff\u2019s money in their hands, and they have failed to account in any satisfactory way for at least $300 of the $900 applied to their own use. This sum, representing the difference between the price of the Grossdale lot which defendants put into the purchase of the Dunning street property and what they charged plaintiff therefor, the latter is entitled to recover with interest thereon from April 17, 1897. She is also entitled to judgment for $26.34 which defendants formerly tendered and conceded to be due. Plaintiff\u2019s attorney also.claims the $50 collected from' the grantor. There is evidence, however, tending to show that this charge was not illegitimate.\nIf therefore plaintiff shall within ten days hereafter remit the excess of the judgment appealed from over and above $326.34 with interest added from April 17, 1897, on the sum of $300, the judgment for the balance will be affirmed. Otherwise it will be reversed and the cause remanded.\n\u25a0Affirmed on remittitur; otherwise reversed and remanded.\nMarch 25, 1910, remittitur filed and judgment affirmed for $520.09.",
        "type": "majority",
        "author": "Mr. Justice Freeman"
      }
    ],
    "attorneys": [
      "P. McHugh, for appellants.",
      "Pliny B. Smith, for appellee."
    ],
    "corrections": "",
    "head_matter": "Margaret Maloney, Appellee, v. Mark F. Madden et al., Appellants.\nGen. No. 14,988.\n1. Bill of particulars\u2014when sufficient. Slight ambiguity in the bill of particulars is not fatal; a bill of particulars will be sustained if it informs the defendant of the nature of the plaintiff\u2019s claim.\n2. Appeals and errors\u2014how identity of actions to he determined. Whether actions are identical is a question of law for the court and not for the jury.\nAssumpsit. Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding.\nHeard in this court at the October term, 1908;\nAffirmed oh remittitur.\nOpinion filed March 17, 1910.\nP. McHugh, for appellants.\nPliny B. Smith, for appellee."
  },
  "file_name": "0271-01",
  "first_page_order": 289,
  "last_page_order": 293
}