{ "id": 2975110, "name": "Edward R. Bacon, Appellant, v. Otto E. Reichelt, Appellee", "name_abbreviation": "Bacon v. Reichelt", "decision_date": "1916-04-28", "docket_number": "Gen. No. 26,865", "first_page": "331", "last_page": "338", "citations": [ { "type": "official", "cite": "199 Ill. App. 331" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "235 Ill. 135", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8499803 ], "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/ill/235/0135-01" ] }, { "cite": "237 Ill. 278", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3387279 ], "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/ill/237/0278-01" ] }, { "cite": "156 Ill. 25", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3023963 ], "opinion_index": 0, "case_paths": [ "/ill/156/0025-01" ] }, { "cite": "93 Ill. App. 176", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5290254 ], "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/ill-app/93/0176-01" ] } ], "analysis": { "cardinality": 608, "char_count": 12633, "ocr_confidence": 0.535, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.0863662321625701 }, "sha256": "62da39117a675b1e21db157634a1c526af76973b204e1bfa487706cb0b6a4b02", "simhash": "1:d9f093e59ce1f800", "word_count": 2051 }, "last_updated": "2023-07-14T15:51:30.955611+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Edward R. Bacon, Appellant, v. Otto E. Reichelt, Appellee." ], "opinions": [ { "text": "Mr. Justice McGoorty\ndelivered the opinion of the court.\nWe are of the opinion that the verdict in this case is against the manifest weight of the evidence. Following defendant\u2019s confession to plaintiff that he wrongfully took $640 of plaintiff\u2019s money, defendant was convicted in the Criminal Court of Cook county of embezzling money from plaintiff, and sentenced to the penitentiary. Defendant\u2019s testimony that plaintiff increased defendant\u2019s salary from $1,800 to $5,000 a year is unsupported by any other direct evidence. Although defendant testified that owing to plaintiff\u2019s poor financial condition he waited for several years before demanding or receiving such additional compensation, the evidence does not show such improvement in plaintiff\u2019s financial condition as would even tend to explain why defendant was enabled to rightfully obtain from plaintiff $24,329.60 within a period of less than two years, commencing May 5, 1910.\nIt seems highly improbable that plaintiff, whose daily banking transactions varied from $1,000 to $200,000 a day, would falsify his books for the sole purpose of concealing from his creditors an added expense of $3,000 a year. There is no evidence in this record that Lamson Brothers were ever deceived by any entry made in plaintiff\u2019s books, or denied access to same. It has not been shown by any evidence how plaintiff\u2019s alleged representation to Lamson Brothers, that plaintiff owed the latter $70,000 less than the amount actually owing, deceived or could have deceived said firm. So far as the evidence discloses, it may be reasonably inferred that only plaintiff was deceived by defendant\u2019s false entries in plaintiff\u2019s books. Considering the further fact that defendant had been duly adjudged guilty of embezzling plaintiff\u2019s money, that most of the money taken by him was during plaintiff\u2019s absence in some distant city, that the checks upon which defendant obtained such moneys are the only checks which are missing, it is evident that the verdict is against the manifest weight of the evidence.\nIt is also contended that the court erred in instructing the jury as follows:\n\u201cThe court instructs the jury that if they find from the evidence herein that the conveyance or conveyances to John W. Barker in question were made for the sole purpose of securing said Barker upon his obligation as a bondsman for said defendant Reichelt, then the court instructs the jury that such conveyance or conveyances cannot be considered by them as evidence in support of the plaintiff\u2019s case upon the attachment issue herein, even though you may believe from the evidence in the case that the property so conveyed was purchased with moneys stolen from Bacon by the defendant.\u201d\nPlaintiff\u2019s affidavit for attachment alleged, inter alia, that defendant had \u201cwithin two years last past fraudulently * * * disposed of his property, so as to hinder and delay his creditors.\u201d In our opinion, the court did not err in giving such instruction. In Murry Nelson & Co. v. Leiter, 93 Ill. App. 176, 180, the court said: \u201cOur Supreme Court has construed the attachment act as applying only in cases where the debtor has committed a fraud in fact, in doing the act found fault with, as contradistinguished from a legal or constructive fraud. They have, in decided cases, held that it is \u2018not enough that the effect of the deed was to delay creditors, but it must have been executed with that purpose and intent,\u2019 and that \u2018granting writs of attachment in cases where only legal or constructive fraud is shown is outside of the general scheme and purpose of the attachment law.\u2019 Weare Commission Co. v. Druley, 156 Ill. 25.\u201d Even if such instruction were held to be erroneous, the giving of same could not have constituted prejudicial error, as it was the duty of the jury, under the evidence, to find the attachment issues in favor of the defendant.\nThe plea or traverse of defendant to plaintiff\u2019s affidavit of attachment filed June 19, .1912, denied that within two years last past defendant fraudulently concealed or disposed of his property, etc. It is obvious that the period from May 14,1912, the date upon which plaintiff\u2019s affidavit of attachment was filed, to June 19, 1912, is not covered by defendant\u2019s plea. While such plea would have been obnoxious to a general demurrer, the failure of plaintiff\u2019s counsel to call the attention of the trial court specifically to this question constituted a waiver of the omission complained of by plaintiff, in defendant\u2019s plea. Devine v. Chicago City Ry. Co., 237 Ill. 278, 280; First Nat. Bank of El Paso v. Miller, 235 Ill. 135, 139.\nFor the reasons herein stated, the judgment of the Circuit Court is reversed and the cause remanded for a new trial on the assumpsit issues only.\nJudgment reversed and cause remanded.", "type": "majority", "author": "Mr. Justice McGoorty" } ], "attorneys": [ "Moses, Rosenthal & Kennedy, for appellant; Walter Bachrach and Sigmund W. David, of counsel.", "Simon La Grou, for appellee; Emory D. Frazier, of counsel." ], "corrections": "", "head_matter": "Edward R. Bacon, Appellant, v. Otto E. Reichelt, Appellee.\nGen. No. 26,865.\n1. Assumpsit, \u00a7 89 \u2014when evidence insufficient to support verdict. In an action of assumpsit, evidence examined and held insufficient to support the verdict.\n2. Attachment\u2014when instruction as to conveyance of property properly given. Where plaintiff\u2019s affidavit for attachment in aid in an action of assumpsit for money alleged to have been embezzled, alleges that defendant had within two years last past fraudulently disposed of his property so as to hinder and delay creditors, it is not error to instruct that if the jury find from the evidence that a certain conveyance was made for the sole purpose of securing the grantee upon his obligation as a bondsman for defendant, such conveyance cannot be considered by them as evidence in support j\u00a3 plaintiff\u2019s case upon the attachment issue, even though they may believe from the evidence that such property was purchased with money stolen from plaintiff.\n3. Appeal and error, \u00a7 1672 \u2014when omission in plea waived. Failure of plaintiff to call the trial court\u2019s attention to an omission in the plea rendering it obnoxious to a general demurrer constitutes a waiver of such omission.\nAppeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.\nReversed and remanded.\nOpinion filed April 28, 1916.\nStatement by the Court. This is an action in assumpsit brought in the Circuit Court of Cook county by Edward R Bacon, appellant, against Otto E. Reichelt, appellee, in connection with which suit was issued a writ of attachment in aid, levied upon certain property of defendant (appellee). There was a trial by jury which resulted in a verdict and judgment for plaintiff for $640 on the assumpsit issue, but against him on the attachment issue, and the writ of attachment was dismissed.\nPlaintiff was engaged in the grain commission business in Chicago. Defendant, who had been continuously in the employ of plaintiff for about twenty-five years, and who during that period had advanced in salary and position from bookkeeper to manager of plaintiff\u2019s office, terminated such employment April 16, 1912, by a letter received by plaintiff on said date, upon his return to Chicago from eastern cities, wherein defendant confessed to embezzling $640 of plaintiff\u2019s money during the latter\u2019s absence.\nPlaintiff\u2019s evidence tends to show that defendant during 1910,1911 and 1912, respectively, while in plaintiff\u2019s employ through a series of forgeries and embezzlements, most of which occurred at times when plaintiff was absent from Chicago, misappropriated and applied to his own use $24,329.60 from plaintiff. The taking of snch sum was admitted by defendant upon the trial, who claimed, however, that such amount represented unpaid salary owing him by plaintiff; that during 1902 or 1903 defendant declined a proffered partnership in plaintiff\u2019s business, because the latter\u2019s financial condition was unsatisfactory; that, thereupon, plaintiff increased defendant\u2019s salary from $1,800 to $5,000 a year; that for a period of eight or nine years following, defendant had only drawn on account of such salary, about $2,000 each year. Defendant further testified that at the time his salary was fixed at $5,000 a year, Lamson Brothers were giving financial aid to plaintiff; that defendant during such period prepared and presented to plaintiff a statement showing the trne condition of the latter\u2019s business, which statement was changed by plaintiff so that it purported to show that he owed Lamson Brothers $75,000 instead of $145,000. At that time, plaintiff in referring to Lam-son Brothers, told defendant that the latter \u201cwould have to cover up the difference\u201d; that plaintiff otherwise increased the purported assets and decreased the purported liabilities thereon shown, and instructed defendant to thereafter prepare such statements accordingly; that plaintiff further instructed defendant to make entries in plaintiff\u2019s books in snch manner as would indicate that the cost of running plaintiff\u2019s business was much less than the actual cost thereof, and show that defendant\u2019s salary was only $2,400 a year, and that the money paid defendant in excess of such sums should be run through the grain account; to place locks upon plaintiff\u2019s books of entry to prevent discovery of such deception, and that thereafter such books were locked by defendant, who admitted, however, that, except as to his salary, plaintiff\u2019s books were kept correctly by him. An examination of plaintiff\u2019s books during May or June, 1912, after defendant\u2019s employment ceased, did not disclose any false entry therein pertaining to the cost of running plaintiff\u2019s business, other than the alleged false entries as to defendant\u2019s salary. All of the entries in plaintiff\u2019s books were made by defendant, and all checks were supposed to be signed by plaintiff, whose account with the' Bank of Montreal varied from $1,000 to $200,000 a day, and had exceeded $300,000 in a single day. Defendant had no authority at any time to sign checks for plaintiff.\nThe method used by defendant in obtaining money in excess of $2,400 a year, his purported salary as shown by plaintiff\u2019s books, may be illustrated by the following instance: According to an entry made by defendant upon plaintiff\u2019s books, a check was purported to have been issued in the course of plaintiff\u2019s business to W. A. Fraser & Company, for $3,104.10. The check actually drawn to the order of that firm was for $3.50. Of the amount appearing upon the books to have been paid to W. A. Fraser & Company, $2,864.16 was used by Reichelt to buy bonds for his own use and benefit. By similar methods defendant obtained from plaintiff $13,809 during 1911, and $7,420 from January 2nd, to April 13th, inclusive, 1912. Defendant claims that all checks thus issued were signed by plaintiff, sometimes in blank; \u201cthat the stub-book was in his (plaintiff\u2019s) hands all day long;\u201d that plaintiff had access to all of the books and that the moneys thus obtained by defendant were so obtained with plaintiff\u2019s knowledge, authority and consent, and intended to apply on defendant\u2019s additional salary. Such knowledge, authority or intent was denied by plaintiff.\nDefendant further testified that he kept no record of moneys in excess of $200 per month thus obtained by him, but that record of same was kept by plaintiff. The checks upon which defendant obtained such moneys were the only checks of plaintiff\u2019s that were missing at the time of the trial. Checks issued next preceding and immediately following the checks above referred to were found intact by the auditor who made the examination of plaintiff\u2019s books, shortly after defendant\u2019s employment ceased. During the period of 1910, 1911 and 1912, defendant purchased with the moneys thus acquired, bonds, diamonds, an automobile and a residence in Maywood which he occupied as his home, and maintained a son in Harvard University at a cost of $1,000 a year. During these years plaintiff frequently visited defendant\u2019s home and had knowledge, generally, of defendant\u2019s style and manner of living. Plaintiff testified, however, that he had been told by defendant, which the latter denies, that during such period defendant had been given money by a wealthy relative.\nPlaintiff contends that the verdict is against the manifest weight of the evidence; that the court erred in instructing the jury on the attachment issue, that the judgment should be reversed and the cause remanded for a new trial of both issues.\nMoses, Rosenthal & Kennedy, for appellant; Walter Bachrach and Sigmund W. David, of counsel.\nSimon La Grou, for appellee; Emory D. Frazier, of counsel.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number." }, "file_name": "0331-01", "first_page_order": 353, "last_page_order": 360 }