{
  "id": 2882250,
  "name": "Twentieth Century Letter & Advertising Bureau, Defendant in Error, v. National Art & Crayon Company, Plaintiff in Error",
  "name_abbreviation": "Twentieth Century Letter & Advertising Bureau v. National Art & Crayon Co.",
  "decision_date": "1915-04-22",
  "docket_number": "Gen. No. 20,139",
  "first_page": "1",
  "last_page": "7",
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      "cite": "193 Ill. App. 1"
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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      "cite": "67 Ill. 378",
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    {
      "cite": "136 Ill. 525",
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      "case_paths": [
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    {
      "cite": "36 Ill. App. 308",
      "category": "reporters:state",
      "reporter": "Ill. App.",
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  "last_updated": "2023-07-14T21:10:43.610055+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Twentieth Century Letter & Advertising Bureau, Defendant in Error, v. National Art & Crayon Company, Plaintiff in Error."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Scanlan\ndelivered the opinion of the court.\nThe Twentieth Century Letter & Advertising Bureau, a corporation, defendant in error, hereinafter called the plaintiff, brought an action of the fourth class in the Municipal Court of Chicago against the National Art & Crayon Company, a corporation, plaintiff in error, hereinafter called the defendant, to recover $808.14, alleged in the statement of claim filed by the plaintiff to be due and owing it for the use and privilege of copying the names and addresses contained in certain letters, the property of the plaintiff. The defendant filed an affidavit of merits admitting that it received merchandise from the plaintiff to the value of $714.66, but claiming that it had a set-off against the plaintiff\u2019s claim to the amount of $670, and that there was therefore due the plaintiff from the defendant $44.66. Thereafter, by leave of court, the defendant filed a statement of set-off (to which was attached an affidavit of defendant\u2019s claim) in words and figures as follows:\n\u201cStatement of Claim for Defendant.\nDefendant\u2019s claim is for the following merchandise purchased by plaintiff from W. J. Pomeroy and by him delivered to plaintiff for which plaintiff paid to said W. J. Pomeroy the sum of $577.00. That defendant never authorized said W. J. Pomeroy to either sell said merchandise or deliver the same to plaintiff or collect said money therefor. That said Pomeroy took said merchandise without the knowledge or consent of this defendant from the possession of defendant. That immediately upon the discovery by this defendant of the unlawful and wrongful taking of said merchandise by said Pomeroy it notified the plaintiff that said merchandise belonged to defendant and demanded the same of plaintiff, but that plaintiff has refused to return the same or pay the defendant therefor; Which merchandise so delivered to the plaintiff by said Pomeroy, and the fair and reasonable\nmarket value thereof is as follows:\nAugust 1, 1912, 7000 National Art Letters at $15 per thousand........................ 105.00\nAugust 1,1912, 8000 Martel Blow-out Protect- or Co. letters at $7.00 per thousand........ 56.00\nSeptember 11, 1912, 4500 Martel Blow-out Protector Co. letters at $7.00 per thousand 31.50 September 11, 1912, 5000 National Salesman\nLetters at $7.00 per thousand............ 35.00\nSeptember 11, 1912, 3000 National Art letters at $15.00 per thousand.................. 45.00\nJuly 2, 1912, 5,500 National Art letters at $15.00 per thousand...................... 82.50\nJuly 2,1912, 45,000 Martel Blow-out Protector Co. letters at $7.00 per thousand........ 315.00\n$670.00.\u201d\nThe defendant also filed a demand for a jury trial. The plaintiff entered a motion to strike the statement of set-off of the defendant from the files, and the court sustained the said motion and also entered judgment in favor of the plaintiff for $714, and \u201cthe court reserves for future determination and adjudication the matter of the balance of the plaintiff\u2019s demand claimed in said plaintiff\u2019s affidavit of claim and the matter of whether further costs shall be allowed herein to either of the parties to this cause. It is further ordered that the court retain jurisdiction herein and that this suit proceed as to said portion of the plaintiff\u2019s demand in dispute as if the suit had been brought therefor.\u201d This writ of error followed.\nThe defendant contends, first, that the court erred in striking the defendant\u2019s statement of set-off from the files and in entering judgment for the plaintiff; second, that even if it be held that the court was justified in striking the defendant\u2019s statement of set-off from the files, still the denial by the court of the defendant\u2019s motion for leave to file a new statement of set-off was a serious and prejudicial abuse of discretion; and third, in any event the court erred in entering judgment for a larger amount than $44.66\u2014 the amount admitted by the defendant\u2019s affidavit of merits to he due the plaintiff.\nAfter a careful consideration of the defendant\u2019s first contention, we have reached the conclusion that it is meritorious and calls for a reversal of the judgment entered by the Municipal Court in this case. We see no good reason, nor has any been called to our attention by counsel for the plaintiff, why the defendant\u2019s statement of set-off should have been stricken from the files and judgment entered in favor of the plaintiff for $714.\nThe plaintiff argues in support of the court\u2019s action in striking the defendant\u2019s statement from the files that \u2018 \u2018 the matter of set-off constitutes a tort which cannot be set off as against a contract. \u201d It is a sufficient answer to this (Contention to say, that even under the common-law rules of pleading, the defendant would have the right to waive the tort and to sue in assumpsit, and we are unable to see how it can be held, under the rules governing pleadings in fourth-class actions in the Municipal Court, that the defendant\u2019s statement of set-off is predicated upon a claim in tort. The defendant did not name the form of its action nor was it obliged to. The formalities of pleadings have been abolished by statute in cases of the fourth class, and the defendant in its statement was simply obliged to apprise the plaintiff of the nature and character of the demand against it; it would not be precluded from recovering on its set-off merely because the facts alleged in its statement would support an action at common law, in some other form than assumpsit, nor would such circumstance justify the court in holding that the defendant\u2019s set-off constituted a claim in tort.\nThe plaintiff insists that if it be held that the defendant\u2019s statement of set-off is a waiver of the tort, then it must also be held that the said statement does not set up a good claim in assumpsit, because if the defendant in said statement relied upon the subject-matter of the tort as an implied or quasi contract, he would, by treating the transaction as a contract, not only ratify the sale of the goods by Pomeroy, but also the payment made to the latter by the plaintiff and, therefore, his claim in assumpsit would fail. This contention of the plaintiff is predicated upon the theory that the defendant\u2019s statement of set-off (if it is held to be a claim in assumpsit) is an election by the defendant to treat Pomeroy as its agent in the matter of the sale. We think the plaintiff misinterprets the theory of the set-off. Giving the set-off the reasonable and liberal construction that should be accorded to statements in cases of the fourth class, we find that it alleges, in substance, that Pomeroy took certain merchandise (describing it), belonging to the defendant, from its possession without its knowledge or consent and sold it to the plaintiff; that the plaintiff received the merchandise and paid Pomeroy for the same; that immediately upon the discovery by the defendant of the said unlawful taking, it notified the plaintiff that the said merchandise belonged to it and that it had been unlawfully taken from it by Pomeroy; that the defendant demanded that the plaintiff restore the said property to it, but that the plaintiff refused to restore the same or to pay the defendant therefor, and that the fair and reasonable market value of the said merchandise (itemizing the various articles) is $670. The set-off presents a case of an owner of property, that has been unlawfully and wrongfully taken from him and sold by the wrongdoer to a third party, expressly repudiating the said sale and, as the owner of the property, demanding from the third party the return of the same or payment for it. There is a specific denial by the owner of the authority of the wrongdoer to sell the merchandise, and there is nothing alleged from which it could be held that there was a ratification of the said sale by the owner. The set-off treats the transaction, not as a sale by an agent of the defendant to the plaintiff, but as a wrongful appropriation of the goods- of the plaintiff by the defendant for which it is liable to the plaintiff in assumpsit ; nor was it necessary, to entitle the defendant to recover in assumpsit, that it should allege in its statement that the goods in question were converted into money or money\u2019s worth by the plaintiff. City of Elgin v. Joslyn, 36 Ill. App. 308, affirmed in 136 Ill. 525; Toledo, W. & W. Ry. Co. v. Chew, 67 Ill. 378; Donovan v. Purtell, 216 Ill. 629. There is certainly no good reason why a less liberal rule should be adopted in a fourth-class case in the Municipal Court. If the statement of set-off were drawn on the theory that the defendant ratified the sale of the goods by Pomeroy to the plaintiff, the case of Bailey v. Pardridge, 134 Ill. 188, so strongly relied upon by the plaintiff in support of its contention, would apply and would control.\nThe plaintiff insists that the court\u2019s action in striking the defendant\u2019s statement of set-off from the files was justified, for the reason that the set-off of the defendant \u201cwas for unliquidated damages arising out of a different transaction from that for which suit was brought, and hence was properly stricken from the files.\u201d There is no merit in this contention, as it is very clear from the defendant\u2019s statement of set-off that the damages claimed are not unliquidated.\nIf we are correct in the conclusions that we have heretofore expressed, it follows that the court erred in striking from the files the defendant\u2019s statement of set-off and in entering judgment for the plaintiff for $714, and, as this error requires a reversal of the judgment in this case, it is entirely unnecessary for us to notice the defendant\u2019s other contentions. The judgment of the Municipal Court of Chicago will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.\nReversed and remanded.",
        "type": "majority",
        "author": "Mr. Justice Scanlan"
      }
    ],
    "attorneys": [
      "W. Knox Haynes and Michael Feinberg, for plaintiff in error.",
      "Chester A. Macomic, for defendant in error."
    ],
    "corrections": "",
    "head_matter": "Twentieth Century Letter & Advertising Bureau, Defendant in Error, v. National Art & Crayon Company, Plaintiff in Error.\nGen. No. 20,139.\n1. Municipal Court op Chicago, \u00a7 32 \u2014when statement of set-off does not set up tort. Statement of set-off in a fourth-class case setting forth that a certain person wrongfully and without authority sold certain merchandise of a certain value owned by it to the plaintiff who paid him therefor, that said person took said merchandise from the possession of the defendant without its knowledge, and that plaintiff refused to pay defendant therefor, held not open to objection as setting up a claim in tort in an action upon a contract.\n2. Municipal Court op Chicago, \u00a7 32*\u2014when statement of set-off sufficient. The formalities of pleading have been abolished in cases of the fourth class, and a statement of set-off is sufficient if it apprises the plaintiff of the nature and character of the demand against it.\n3. Principal and agent, \u00a7 191*\u2014what not a ratification. Statement of set-off in a fourth-class case alleging that a certain person wrongfully and without authority took merchandise of a certain value owned by the defendant and Sold it to the plaintiff, collecting therefor, and that plaintiff refused to return such merchandise or to pay defendant for same, held not bad on the theory that defendant thereby ratified the wrongful act of such third person, and made him its agent.\n4. Municipal Couet of Chicago, \u00a7 32 \u2014what need not he alleged in statement of set-off. A statement of set-off averring that a certain person wrongfully and without authority sold merchandise owned by it to plaintiff and collected therefor, and that plaintiff refused to pay defendant for such merchandise or return the same, need not allege that the goods in question were converted into money or money\u2019s worth by the plaintiff.\n5. Municipal Court of Chicago, \u00a7 32*\u2014when statement of set-off does not claim unliquidated damages. Statement of set-off held not bad as claiming unliquidated damages.\nError to the Municipal Court of Chicago; the Hon Hugh R. Stewart, Judge, presiding.\nHeard in the Branch Appellate Court at the March term, 1914.\nReversed and remanded.\nOpinion filed April 22, 1915.\nW. Knox Haynes and Michael Feinberg, for plaintiff in error.\nChester A. Macomic, for defendant in error.\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."
  },
  "file_name": "0001-01",
  "first_page_order": 23,
  "last_page_order": 29
}