{
  "id": 3332695,
  "name": "Bernerd Carlin, Trading as Bernerd Carlin Organization, Appellee, v. Millers Motor Corporation, Appellant",
  "name_abbreviation": "Carlin v. Millers Motor Corp.",
  "decision_date": "1932-02-29",
  "docket_number": "Gen. No. 35,580",
  "first_page": "353",
  "last_page": "358",
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      "cite": "265 Ill. App. 353"
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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      "cite": "336 Ill. 482",
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    {
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      "cite": "205 Ill. 281",
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    {
      "cite": "264 Ill. 279",
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  "last_updated": "2023-07-14T21:34:27.809681+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Bernerd Carlin, Trading as Bernerd Carlin Organization, Appellee, v. Millers Motor Corporation, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice O\u2019Connor\ndelivered the opinion of the court.\nBy this appeal the defendant seeks to reverse a judgment of $1,000 rendered ag\u2019ainst him in the county court of Cook county on May 5, 1931, in an action of assumpsit.\nThe record discloses that on May 15, 1931, plaintiff brought an action of assumpsit against the defendant, claiming $1,000 on account of the breach of a written contract for services which plaintiff apparently contends he performed for the defendant. The declaration was in one count and there was an affidavit of claim. The defendant filed a special plea and an affidavit of merits. Plaintiff filed a general demurrer to the plea and on May 5, the parties appeared before the county court to have the demurrer disposed of. The judgment order apparently was prepared by counsel and, after stating that the demurrer came on for hearing, continues: \u201cIt Is Ordered, Adjudged and Decreed, that the motion of the defendant to carry back to the declaration the demurrer of the plaintiff to the special plea, he and is hereby overruled, and\n\u201cFurthermore, that the general demurrer of the plaintiff to the special plea of the defendant be and hereby is sustained.\u201d And the defendant electing to stand by its special plea it was defaulted for want of a plea. The next paragraph of the order is: \u201cFurthermore, the motion of the plaintiff to strike the defendant\u2019s affidavit of merits to plaintiff\u2019s sworn statement of claim for failure to disclose a meritorious defense, be and is hereby sustained\u201d and the defendant elected to stand by its affidavit of merits. The order then continues:\n\u201cTherefore, let judgment be entered for the plaintiff against the defendant on the merits for his damages in the amount of One Thousand Dollars ($1,000.00), together with plaintiff\u2019s costs, and that execution issue therefor.\u201d Then follow the prayer and allowance of appeal to this court. We have quoted from the \"order to show that it in no way follows the customary judgment order entered in a common law action. The judgment order does not speak the truth because it is obvious that judgment was entered on plaintiff\u2019s affidavit of claim; the defendant having been defaulted for want of a plea it was not entered against the defendant \u201con the merits\u201d as the judgment order states.\nThe defendant having moved that the demurrer be carried back to the declaration, the first question for decision is the sufficiency of the declaration. Rieman v. Morrison, 264 Ill. 279; Stott v. City of Chicago, 205 Ill. 281 (erroneously cited by counsel for defendant as Scott v. City of Chicago, 205 Ill. 581); Giddings v. Williams, 336 Ill. 482 (also erroneously cited by counsel for defendant as 336 Ill. 432). The substance of the declaration is that on December 16, 1929, plaintiff being \u201cby occupation an export counseler, and the defendant a manufacturer of marine motors,\u201d entered into a certain agreement in writing whereby the defendant employed plaintiff \u201cto represent and sell for him certain goods, wares and merchandise, connected with its said business as manufacturer of marine motors\u201d; that the employment was for a period of five years commencing January 1, 1930; that \u201cplaintiff then and there accepted the said employment, and in consideration thereof the defendant then and there . . . promised the plaintiff to pay him for such services\u201d $2,400 per annum, payable monthly at the rate of $200 per month. And it is further averred that plaintiff \u201cthen and there entered into the employment of the defendant under a written contract, a tru\u00e9 and correct copy of which is hereto attached and marked \u2018Plaintiff\u2019s Exhibit A,\u2019 and by reference is herein incorporated as if set forth in like words and figures; and plaintiff continued in such employment unto the present date\u201d; but that the defendant refused to pay the $200 per month; that plaintiff was always ready and willing and \u201coffered the defendant\u201d to continue in the services of the defendant as aforesaid \u201cand to perform all the duties required of him to be performed, according to the terms of the contract, heretofore referred to as \u2018Plaintiff\u2019s Exhibit A\u2019 \u201d and that there was now due and owing from the defendant to the plaintiff $1,000, \u201cbeing the amount due the plaintiff under said contract from the- date of his employment as aforesaid until the first of May, A. D. 1930.\u201d\nThe defendant, in its plea to the declaration, referred to the contract attached to plaintiff\u2019s declaration as Exhibit A, and if the declaration and plea were to be considered in the absence of a demurrer, the defendant would not be in a position to contend, as he does here, that the contract attached as an exhibit is no part of the declaration under the common law system of pleading. But since we are testing the sufficiency of the declaration by demurrer, we must pass on its sufficiency without reference to the exhibit attacked, because such an exhibit is no part of the declaration in an action at common law. Plew v. Board, 274 Ill. 232. A pleading is to be taken more strongly against the pleader where it is tested by a demurrer, and, applying this rule to the declaration before us, we are of the opinion that the demurrer should have been sustained. The averments are uncertain in a number of particulars. It is first alleged that the parties entered into a written' agreement dated December 16, 1929, whereby plaintiff was employed by defendant \u201cto represent and sell marine motors for the defendant for a period of five years and commencing January 1, 1930\u201d; that plaintiff accepted the employment and that defendant was to pay plaintiff $2,400 a year at the rate of $200 a month. It is then alleged that plaintiff then and there entered into the employment under a written contract, a true copy of which is said to be attached as plaintiff\u2019s Exhibit A. \"Whether this is the same contract mentioned above cannot be determined from a reading of the declaration without reference to the exhibit attached, which, under the law, we are not at liberty to notice. There is no specific allegation, as there, should be, that plaintiff performed the services required of him under the contract, except inferentially. It is alleged that the plaintiff entered into the employment \u201cunder a written contract\u201d attached as an exhibit, plaintiff apparently assuming to recover for five months \u2019 salary; but he should have alleged that he performed the services, as this is apparently his contention, as appears from counsel\u2019s brief. Moreover, we might point out that plaintiff\u2019s claim of $1,000 is based upon the allegation of plaintiff\u2019s employment from January 1 to May 1, a period of but four months, and which at $200 a month would be but $800; but plaintiff claims and has his judgment for $1,000.\nPlaintiff entitled his case, \u201cBernerd Carlin d/b as Bernerd Carlin Organization.\u201d Section 18 of the Schedule of the Constitution of 1870 provides that judicial proceedings shall be conducted and preserved in the \u201cEnglish language,\u201d which, since the legislative enactment of 1923 probably should be referred to as the \u201cAmerican language.\u201d Laws of 1923, paragraph 8, Cahill\u2019s 1931 Statutes, ch. 17b, p. 194.\nThe judgment of the county court of Cook county is reversed and the cause is remanded with directions to sustain the demurrer to the declaration. Of course the court will permit plaintiff to amend if so advised.\nReversed and remanded with directions.\nMcSurely and Hatchett, JJ., concur.",
        "type": "majority",
        "author": "Mr. Presiding Justice O\u2019Connor"
      }
    ],
    "attorneys": [
      "Byron Tyler and John F. Denissen, for appellant.",
      "Marvin W. Wallach, for appellee; Arthur C. Lewin, of counsel."
    ],
    "corrections": "",
    "head_matter": "Bernerd Carlin, Trading as Bernerd Carlin Organization, Appellee, v. Millers Motor Corporation, Appellant.\nGen. No. 35,580.\nHeard in the first division of this court for the first district at the October term, 1931.\nOpinion filed February 29, 1932.\nRehearing denied March 14, 1932.\nByron Tyler and John F. Denissen, for appellant.\nMarvin W. Wallach, for appellee; Arthur C. Lewin, of counsel."
  },
  "file_name": "0353-01",
  "first_page_order": 379,
  "last_page_order": 384
}