{
  "id": 2904216,
  "name": "Bonner & Marshall Company, Appellee, v. Ernest F. Hansell, Appellant",
  "name_abbreviation": "Bonner & Marshall Co. v. Hansell",
  "decision_date": "1914-11-19",
  "docket_number": "Gen. No. 19,945",
  "first_page": "474",
  "last_page": "486",
  "citations": [
    {
      "type": "official",
      "cite": "189 Ill. App. 474"
    }
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "last_updated": "2023-07-14T20:38:10.053698+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Bonner & Marshall Company, Appellee, v. Ernest F. Hansell, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Fitch\ndelivered the opinion of the court.\nThe main contentions of appellant upon this appeal may be stated as follows: Appellee\u2019s statement of claim sets up an original undertaking, while the evidence shows only a collateral promise on the part of appellant, through his agent Pray, to answer for the debt of Cox Brothers; that appellant is not liable in this action upon the promise of Pray, first, because there is a variance between the allegations and the proofs; second, because Pray had no authority to make such a promise on behalf of appellant; and third, because the promise of Pray, even if made by him and authorized by appellant, was but an oral promise to answer for the debt of Cox Brothers, and therefore void, under the statute of frauds.\nIt is well settled that the portion of the statute of frauds which is relied on by appellant has reference only to collateral undertakings to answer for the debt or default of another. \u201cWhere the agreement is original and independent, it is not within the statute; if collateral, it is.\u201d Resseter v. Waterman, 151 Ill. 169; Lusk v. Throop, 189 Ill. 127. The terms \u201coriginal promise\u201d and \u201ccollateral promise\u201d are not used in the statute, but have been adopted by the courts as a convenient method of expressing the distinction between cases in which the direct and leading object of the promise is to promote some interest or purpose of the promisor, and cases in which the main purpose of the promise is to assume or guaranty the debt of another. Smith on the Law of Fraud, sec. 317. In any case within the former class, the promise is original and is good whether oral or in writing, even though the effect may be to. release or suspend the debt of another. In any case within the latter class, the promise is collateral to the obligation of another, and is void by the terms of the statute unless it, or some note or memorandum of it, is in writing and signed by the party to be charged therewith. In Stone v. Walker, 79 Mass. 613, Mr. Chief Justice Shaw illustrates this distinction as follows: \u201cIf the promise is made by one in his own name to pay for goods or money delivered to, or services done for another, that is original; it is his own contract on good consideration, and is called original, and is binding on him without writing. But if the language is \u2018Let him have money or goods, or do service for him, and I will see you paid,\u2019 or \u2018I promise you that he will pay,\u2019 or \u2018If he do not pay, I will,\u2019 this is collateral, and, though made on good consideration, it is void by the statute of frauds.\u201d This statement of general principles is subject, however, to the qualification that the use of any particular set of words is not, of itself, necessarily controlling. \u201cWhether an undertaking is original or collateral merely, is to be determined, not from the particular words used, but from all the circumstances attending the transaction.\u201d Blank v. Dreher, 25 Ill. 331. In determining this question, one of the recognized tests is whether the credit is given to the person sought to be charged, or to someone else. Geary v. O\u2019Neil, 73 Ill. 593; Schoenfeld v. Brown, 78 Ill. 487. Where the price of goods sold and delivered is charged upon the seller\u2019s books to the person to whom they are delivered, that fact, if unexplained by other circumstances, is generally considered as strong evidence going to show that credit was given to such person; Lusk v. Throop, supra. \u201cIf one has a claim against another, and keeps books, it will so appear on the .books, and it will require very strong evidence to show the entry was made by mistake.\u201d Hardman v. Bradley, 85 Ill. 162. Such evidence is not conclusive, however. It may be rebutted or explained, and therefore the whole question becomes a question of fact to be determined by the jury from all the circumstances, under proper instructions. Lusk v. Throop, supra; Ruggles v. Gatton, 50 Ill. 412.\nIn this case, it was admitted that appellee did not enter upon its books of account any charge against appellant for the price of the brick that were delivered. It charged the price of the brick directly to Cox Brothers. A copy of appellee\u2019s ledger account was offered in evidence and shows that the items charged for brick furnished to appellant were charged to the account of Cox Brothers in precisely the same manner as other sales, previously made by appellee to Cox Brothers, were charged. \u2022 No attempt was made to rebut the inference naturally arising from this .fact, ' and this evidence, unexplained, tends strongly to prove that at the time of the delivery of the brick, appellee did not consider appellant as primarily its debtor, but intended to collect its claim from Cox Brothers if it could, and regarded the promise of Pray as a guaranty only. The special findings of the jury show that the jury took this view of the matter, and in our opinion, this is the only- reasonable conclusion from all the facts and circumstances in evidence. This being so, it must be held that the promise of Pray, on behalf of appellant, \u201cto see that the account was paid,\u201d or \u201cto guarantee the account,\u201d was a collateral undertaking to answer for the debt or default of Cox Brothers. It was not essential, however, to the validity of this promise, that the promise itself should be in writing. It was sufficient, under the statute, that the promise be evidenced by \u201csome note or memorandum thereof\u201d in writing, signed by appellant. We think that appellant\u2019s letter of November 13, 1911, was a sufficient \u201cnote or memorandum\u201d in writing to meet this requirement of the statute. We are also of the opinion that the same letter, when read in connection with the letter of November 11, 1911, clearly shows that Pray had full authority to make the promise in question for and on behalf of appellant. Appellant\u2019s letter of November 13, 1911, refers specifically to appellee\u2019s claim \u201cagainst Cox Brothers for material delivered to them for my building.\u201d It is addressed to appellee and states that, \u201cyour claim will be fully protected,\u201d that Pray \u201chas full charge and is paying out all the bills,\u201d and that \u201che will take care of and protect you.\u201d Bearing in mind that this letter was written in reply to a letter from appellee in which, notwithstanding the promise of Pray, which is mentioned in the letter, appellee insists upon some assurance from appellant himself regarding the matter, and asks for his personal guaranty, there does not seem to be any reasonable doubt that appellant, with full knowledge of all the facts, intended by his letter to ratify, approve and confirm all that Pray had done and promised to do on his behalf.\nThese conclusions bring us naturally to the only part of appellant\u2019s contention that, in our judgment, presents any serious difficulty, viz.: Is there a variance between the plaintiff\u2019s statement of claim and the proofs, and is appellant in a position to urge that objection? It will be noticed that the statement of claim says, in effect, that when Cox Brothers first ordered appellee to deliver the brick in question to appellant (which was \u201con or about August 1, 1911\u201d) appellee \u201cthen and there refused to deliver the said brick on the credit of said Cox Brothers.\u201d The statement of claim does not, however, allege that appellee persisted in its refusal after the promise of Pray was made. On the contrary, the next averment of the statement of claim is that \u201con or about August 7, 1911\u201d (seven days later), Frank M. Pray, as the agent for appellant, \u201cagreed with the plaintiff to see that the plaintiff would be paid for all brick so delivered and to be delivered as aforesaid,\u201d and \u201cthat relying on said promises, the plaintiff delivered to said Cox Brothers on their order, 60,000 brick at $22 per M.\u201d This is not an averment of an absolute promise on the part of appellant to pay for the brick, but amounts to an allegation that the plaintiff was induced, by the promise of appellant\u2019s agent, to withdraw its refusal and to deliver the brick to Cox Brothers on their order, that is, to extend credit to them in reliance upon appellant\u2019s collateral promise \u201cto see the plaintiff paid\u201d for all brick ordered by them. Under this construction of the statement of claim, there is no variance between its allegations and the proofs. This was the construction placed upon the statement of claim by appellant himself in his pleadings; for in his affidavit of merits (which, in the Municipal Court, takes the place of a plea), appellant states \u201cthat the said alleged agreement in said amended statement of claim is a promise to answer for the debt, default, or miscarriage of another, to-wit: Cox Brothers, and that the said alleged agreement is not evidenced by a writing as required by statute.\u201d Manifestly, this defense is wholly inapplicable if, as appellant now contends, the statement of claim sets up an original undertaking instead of a collateral promise to answer for the debt of another. Furthermore, even if it could be held that the statement of claim is a statement of an original promise, we think that appellant is not in a position to raise the question of .variance in this court, for the reason that the alleged variance was not specifically pointed out in the trial court, where the statement of claim could have been amended. It is true that at the close of the plaintiff\u2019s evidence, appellant made a motion to instruct the jury to find the issues for the defendant, upon the ground \u201cthat the evidence shows that there was no original undertaking, but a collateral undertaking, void under the statute of frauds but there is no reference in this motion to the statement of claim. If appellant\u2019s counsel intended by this language to call the attention of the court and opposing counsel to the alleged variance between the statement of claim and the evidence, they were unfortunate in the choice of words by which they expressed that intention. A reading of the record convinces us that the trial court did not so understand the motion, and did not, in fact, rule on any question of variance. An objection of that character must be presented to the trial court in more unmistakable terms than the motion made in this case, so that, if necessary, the proper amendment to the pleadings may be made.\nIt is urged that the court erred in refusing to permit appellant to show that the word \u201cprotect\u201d had a \u201cparticular meaning\u201d among architects and material men. We think there was no error in this ruling. The two November letters, taken together, leave no room to doubt what the parties themselves meant by the word \u201cprotect,\u201d and it was therefore not material whether it had a different meaning as generally used by architects and material men. Furthermore, when the objection to the question was sustained no offer was made to prove by the architect that the word has a special meaning among architects and material men which is different from the ordinary well-understood meaning of the word itself.\nNor do we think there was any error in permitting the plaintiff\u2019s witnesses to testify to admissions made by the architect after the November letters were written. No payment had been made up to that time, and Pray was still acting as appellant\u2019s agent. We think the evidence was admissible as part of the res gestae.\nThe contention that the court erred in refusing to permit alleged impeaching evidence to be introduced is also without merit. The witnesses who were sought to be impeached admitted that they had testified upon the former trial as was claimed, and there was therefore nothing to impeach. Moreover, the form in which the impeaching questions were put to the stenographers who reported the former trial was clearly improper.\nAs to the alleged error in admitting a copy of the letter of November 11, 1911, the objection that no notice to produce the original had been shown, was not made at the time, and cannot be made here for the first time.\nFinding no reversible error in the record, the judgment of the Municipal Court will be affirmed.\nAffirmed.",
        "type": "majority",
        "author": "Mr. Presiding Justice Fitch"
      }
    ],
    "attorneys": [
      "Edwin Terwilliger, Jr. and Edward D. Pray, for appellant.",
      "Edmund W. Froehlich, for appellee."
    ],
    "corrections": "",
    "head_matter": "Bonner & Marshall Company, Appellee, v. Ernest F. Hansell, Appellant.\nGen. No. 19,945.\n1. Frauds, statute of, \u00a7 2 \u2014when oral promise to answer for debt of another within statute. The provision of the statute of frauds, J. & A. T 5867, requiring a promise to answer for the debt of another to be in writing, applies to promises, the main purposes of which are to assume or guaranty the debt of another, and does not apply to promises, the object of which is to promote some interest or purpose of the promissor.\n2. Frauds, statute of, \u00a7 2 \u2014when oral promise to pay debt of another sufficiently evidenced by writing. An oral promise of an agent of the owner of a building to see that a party furnishing brick to the original contractor was paid, held to constitute a collateral promise to pay the debt of another, but a letter written by the owner and signed by him, held to constitute a sufficient \u201cnote or memorandum\u201d in writing to meet the requirements of the statute of frauds.\n3. Frauds, statute of, \u00a7 126 \u2014evidence admissible to show collateral promise. Where a party promises to pay for goods furnished another, the fact that the latter was charged on the books of account for the same is evidence that the promise was collateral, but such evidence is not conclusive and may be rebutted and explained.\n4. Frauds, statute of, \u00a7 122 \u2014when statement of claim based on collateral promise. In an action against the owner of a building for materials furnished to a building contractor, the averments of plaintiff\u2019s statement of claim construed as basing the right to recover on a collateral promise of defendant to pay rather than an original undertaking.\n5. Appeal and error, \u00a7 438 \u2014when objection to variance cannot be considered. The question of variance between the statement of claim and the proof cannot be raised on appeal where the alleged variance was not specifically pointed out in the trial court.\n6. Appeal and error, \u00a7 522 \u2014sufficiency of objection to variance. An objection for variance between statement of claim and proofs must be in such terms that the court may understand that the question of variance is raised.\n7. Evidence, \u00a7 361 \u2014when evidence to show meaning of words inadmissible. Refusal to permit a party to show that the word \u201cprotect\u201d as used in an agreement, had a particular meaning among architects and material men, held not error where it appeared what the parties meant by the use of the word, and it also appeared that when the objection to the evidence was sustained no offer was made to prove that the word had a meaning different from its ordinary meaning.\n8. Evidence, \u00a7 80 \u2014when declarations of agent part of res gestae. In an action against an owner of a building to recover for materials furnished a building contractor, admissions made by the architect after the defendant had written letters to plaintiff concerning payment, held admissible as part of the res gestae, it appearing that no payment had been made up to that time and that the architect was still acting as defendant\u2019s agent.\n9. Witnesses, \u00a7 279 \u2014when impeaching evidence may be refused. Refusal of court to permit impeaching evidence to be introduced, held not error where the witnesses sought to be impeached admitted what was sought to be introduced.\n10. Appeal and error, \u00a7 452 \u2014when objection to admission of documentary evidence not preserved for review. The admission of a copy of a letter in evidence cannot be urged as error, for the reason no notice to produce the original was shown, where no such objection was made in the trial court.\nAppeal from the Municipal Court of Chicago; the Hon. Frederick L. Fake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.\nAffirmed.\nOpinion filed November 19, 1914.\nStatement by the Court. Appellee recovered a judgment against appellant in the Municipal Court for $1,402.13, upon a statement of claim reading as follows:\n\u201cPlaintiff\u2019s claim is as follows: Cox Brothers, mason contractors in the erection of improvements for the defendant, Ernest F. Hansell, upon the premises hereinafter mentioned, ordered the plaintiff on or about August 1, 1911, to deliver about 60,000 brick at $22 per M to the premises at Sheridan road and Margate terrace owned by the said defendant, E. F. Hansell. Plaintiff then and there refused to deliver the said brick on the credit of said Cox Brothers, and thereupon, on or about August 7, 1911 (and on divers days subsequent thereto), one Frank M. Pray, as agent for the defendant, Ernest F. Hansell, agreed with the plaintiff to see that the plaintiff would be paid for all brick so delivered and to be delivered as aforesaid. That relying on said promises, the- plaintiff delivered to said Cox Brothers on their order 60,000 brick at $22 per M.\nThat subsequently thereto, and on to wit, November 13, 1911, the defendant in writing acknowledged said undertaking and agreement, and then and there contracted and agreed to pay the plaintiff the said sum of $1,320, no- part or portion of which sum has ever been paid.\u201d\nThe affidavit of merits filed by appellant denied seriatim each of the allegations of fact in appellee\u2019s statement of claim, and averred, \u201cas a further defense,\u201d that the agreement mentioned in the statement of claim \u201cis a promise to answer for the debt, default \u00b0or miscarriage of another, to-wit: Cox Brothers, and that the said alleged agreement is not evidenced by a writing as required by statute.\u201d\nThe evidence introduced on behalf of appellee tends to prove that in the summer and fall of 1911, appellant was the owner of a tract of ground at the location mentioned in the statement of claim, upon which he was erecting an apartment building; that Frank M. Pray was his architect; that Pray prepared the plans and specifications let the contracts and superintended the work; that as the work progressed appellant placed in the hands of Pray various sums of money, aggregating about $20,000, with which to pay the contractors; that without further directions from appellant, Pray paid out this money, from time to time, to such contractors as, in his judgment, were entitled to it; that about August 1, 1911, Pray called at the office of appellee, whose business is the manufacture and sale of brick, said he was erecting a building for a man named Hansell, asked if appellee \u201chad anything that cost about $20 or $22,\u201d was given some samples, which he took away, saying he would submit them to appellant; that a day or two later, he returned and said to appellee\u2019s salesman: \u201cThat is the brick we are going to use,\u201d indicating a sample, the price of which was $22 a thousand; that the salesman asked who the contractors were; that Pray replied: \u201cCox Brothers,\u201d whereupon the salesman said that they were irresponsible and that appellee had an outstanding account against them that remained unpaid; that Pray replied that he was acting as appellant\u2019s agent, and would \u201cguarantee Mr. Hansell\u2019s account and see that it was paid,\u201d and directed the salesman to go to Cox Brothers to ascertain the quantities desired, the manner of delivery, etc.; that soon after and before any brick were delivered, Charles Bonner, the president of appellee, called up Pray on the telephone and told him that appellee had an order from Cox Brothers for brick to be delivered to Margate terrace, that he did not consider them financially responsible and \u201cwould like some guarantee\u201d of the account; that Pray replied that he \u201cwould see that the account was protected and paid;\u201d that after these conversations with Pray, appellee delivered 60,000 of the brick to Cox Brothers, charged the amount of the .same in its account books to Cox Brothers and sent bills for the same from time to time to Cox Brothers; that these bills were not paid, and on November 11, 1911, appellee wrote to appellant calling attention to the fact that it had furnished the brick for appellant\u2019s buildings to Cox Brothers, and concluding as follows:\n\u201cThere is due us on account of this delivery, the sum of thirteen hundred and twenty dollars ($1,320). This account is all due. A portion of it, past due.\nI might state the financial standing of Cox Brothers is none too good, and unless we can get protection from you as owner, we will be obliged to protect ourselves by lien on the buildings. Kindly let us know at once, the protection we may expect.\nTour architects, Messrs. F. E. Pray & Son, have before delivering these'goods, stated that they would see our account was secured; but we do not wish to lose our lien rights, and would ask that you write us, guaranteeing this amount.\nMost truly yours,\n(Signed) Bonner & Marshall Company.\u201d\nTo this letter appellant replied as follows:\n\u201cChicago, Ill., November 13, 1911.\n\u201cBonner & Marshall Co.,\nGentlemen:\nYours of the 11th in reference to your claim of $1,320, against Cox Brothers for material delivered to them for my building at Sheridan road and Mar-gate terrace is received and in reply will say that your claim will be fully protected. Mr. Frank M. Pray, the architect, has full charge and is paying out all the bills. His office is with F. E. Pray & Son. He will take care of and protect you- in any claims you have on account of this job.\nYours very truly,\nErnest F. Hansell.\u201d\nAt the close of the plaintiffs evidence, appellant moved to instruct the jury to find for the defendant \u201cupon the ground that the evidence shows that there was no original undertaking, but a collateral undertaking, void under the statute of frauds, and on the further ground that there has been no evidence showing that Frank M. Pray had any authority to bind the defendant in relation to the matters testified to.\u201d This motion was denied and an exception preserved.\nOn behalf of appellant, Frank M. Pray testified that he went to appellee\u2019s office to make a selection of brick; that he inquired the price and told the salesman \u201cwe are figuring with a concern named Cox Bros.\u201d He denied that he said anything to the salesman at any time \u201cabout guaranteeing the account\u201d or \u201cabout protecting or paying\u201d for the brick. He admitted that he had a conversation with Bonner over the telephone, but claimed this was after most of the brick had been delivered, and denied that he ever told Bonner that he would guaranty appellee\u2019s account. He testified, however, that he also had a talk with Bonner in September, in which Bonner had requested payment for the brick, that his reply was that he did not have any money at that time, but that he had taken a \u201ccontractor\u2019s statement\u201d from Cox Brothers, in which appellee was \u201cmentioned\u201d for the sum of $1,200 or $1,300. During the examination of this witness he was asked: \u201cHas the word \u2018protect,\u2019 according to the usage and customs of the architects and material men, any particular meaning?\u201d An objection to this question was sustained, and the question was not answered.\nThe evidence on behalf of appellant also tended to prove that the written contract of Cox Brothers with appellant required them to do the mason work on appellant\u2019s building, and provide all materials for the same, \u201cand deliver same free from mechanic\u2019s .liens or claims arising out of the performance of this contract, \u2019 \u2019 that notwithstanding this provision in the contract of Cox Brothers, appellee, in November, 1911, served on appellant a formal notice stating that it had been employed by Cox Brothers to furnish brick for appellant\u2019s buildings under their contract, that there was due it $1,320 for the same, and that appellee would hold the buildings and appellant\u2019s interest in the ground, liable therefor; and that in February, 1912, appellee filed its bill in the Superior Court seeking to establish a mechanic\u2019s lien upon appellant\u2019s property.\nAppellant\u2019s evidence further showed that in October, 1911, appellee wrote to Cox Brothers requesting them to give appellee \u201can order on the architect,\u201d and later in the same month wrote to the architect stating that Cox Brothers had failed to give appellee such an order, and requesting the architect \u201cto have check made for the amount to Cox Brothers and endorsed by them to ourselves.\u201d\nEdwin Terwilliger, Jr. and Edward D. Pray, for appellant.\nEdmund W. Froehlich, for appellee.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number."
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