{ "id": 3324855, "name": "Goodman American Ice Cream Company, Plaintiff and Appellant, v. Barney M. Mendelsohn and Herman M. Mendelsohn, Defendants. Herman M. Mendelsohn, Appellee", "name_abbreviation": "Goodman American Ice Cream Co. v. Mendelsohn", "decision_date": "1934-03-06", "docket_number": "Gen. No. 36,798", "first_page": "253", "last_page": "260", "citations": [ { "type": "official", "cite": "274 Ill. App. 253" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "191 Ill. App. 589", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5383900 ], "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/ill-app/191/0589-01" ] }, { "cite": "85 Ill. 423", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2778508 ], "pin_cites": [ { "page": "425" } ], "opinion_index": 0, "case_paths": [ "/ill/85/0423-01" ] }, { "cite": "179 Ill. App. 223", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2817582 ], "pin_cites": [ { "page": "228" } ], "opinion_index": 0, "case_paths": [ "/ill-app/179/0223-01" ] }, { "cite": "205 Ill. 77", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3283875 ], "pin_cites": [ { "page": "83, 84" } ], "opinion_index": 0, "case_paths": [ "/ill/205/0077-01" ] } ], "analysis": { "cardinality": 524, "char_count": 11794, "ocr_confidence": 0.497, "pagerank": { "raw": 1.1146904769136531e-07, "percentile": 0.5718084336191029 }, "sha256": "f7329f224ab923a3c89521ee71652511ce0653db7926a893d5f9c16bdd680815", "simhash": "1:b1f2194dc9b65047", "word_count": 1998 }, "last_updated": "2023-07-14T17:53:58.051062+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Goodman American Ice Cream Company, Plaintiff and Appellant, v. Barney M. Mendelsohn and Herman M. Mendelsohn, Defendants. Herman M. Mendelsohn, Appellee." ], "opinions": [ { "text": "Mr. Justice Gridley\ndelivered the opinion of the court.\nOn November 23, 1932, plaintiff caused a judgment by confession for $1,052.56, to be entered in the municipal court against defendants on their judgment note for $800, dated March 10, 1930, payable to plaintiff\u2019s order on or before six months with interest at six per cent per annum after date. The amount of the judgment included accrued interest and an attorney\u2019s fee. On November 30, 1932, upon the verified petition of Barney Mendelsohn, the court ordered that as to him the judgment be vacated and the suit dismissed, for the reason, as found, that he had duly been adjudicated a bankrupt, and on March 7,1932, discharged from his obligation on said note. On November 30, 1932, also, on the verified petition of Herman Mendelsohn, the court ordered that the judgment as to him be \u201copened\u201d but stand as security, that he be given leave to make his defense upon a trial, and that his petition and affidavit \u201cstand as an affidavit of merits in the cause.\u201d Subsequently, by leave of court, he filed an additional affidavit of merits, setting up an additional defense. On February 17, 1933, there was a trial without a jury, resulting in the court finding the issues against plaintiff, and adjudging that the confessed judgment of November 23, 1932, against Herman Mendelsohn (hereinafter called defendant) be vacated, that plaintiff take nothing, and that defendant recover his costs, etc. The present appeal by plaintiff followed.\nIn defendant\u2019s said petition, as an affirmative defense to the note, he alleged in substance that he signed and delivered the note on March 10, 1930, at his Chicago office; that an employee of plaintiff, one M. W. Kingsley, exhibited the note which had already been signed by his brother, Barney Mendelsohn; and that he (defendant) signed the note because of the statements and representations of said Kingsley then made, in substance as follows:\nThat plaintiff company (also known as Goodman American Corporation) had paid to Barney Mendelsohn the sum of $800; that the sum \u201cwas a bonus to Barney Mendelsohn because he had changed his ice cream business from the Wieland Ice Cream Co. to plaintiff company\u201d; that because of the fact that there was some kind of a gentlemen\u2019s agreement between ice cream companies belonging to a certain Ice Cream Association (viz., that none of the companies would take away each others\u2019 customers by means of the paying of a bonus or gift), \u201cit would be necessary for me to sign said note with said Barney Mendelsohn, so that, in case of an investigation, plaintiff company would be able to show said note and say that there was actually a loan, and that my signature to said note would be impressive evidence to convince any investigator that the money, so paid to Barney Mendelsohn was a loan\u201d; that plaintiff company \u201cwould never attempt to enforce payment of the note\u201d; and that \u201cmy signature would only be used for the purpose of shielding plaintiff company from any charge which might be made that it had paid a bonus for the privilege of taking away business from one of the companies which belonged to said ice cream association.\u201d\nAnd in said petition, defendant made the further defense in substance that because of said bankruptcy proceedings, the scheduling of the note therein and Barney Mendelsohn\u2019s discharge from his obligation on the note, the entry of the joint judgment by confession was erroneous as to both defendants. And in his additional affidavit of merits, filed January 23, 1933, defendant made the further defense, that he signed the note only \u201cas a surety\u201d for Barney Mendelsohn, and that plaintiff failed to make any efforts to collect the note prior to the bankruptcy proceedings.\nOn the trial plaintiff, to make out its prima facie case, introduced the note in evidence, and also plaintiff\u2019s check for $800, dated March 12, 1930, payable to the order of Herman Mendelsohn, and having on its face a notation that the \u201citem\u201d for which it was given was a \u201cnote\u201d for $800. The check bears the successive indorsements of \u201cHerman Mendelsohn\u201d and \u201cMarquette Pharmacy, by Barney Mendelsohn,\u201d and is stamped as having been paid.\nThereupon defendant\u2019s attorney, after introducing a certain document in connection with the organization of plaintiff as an Illinois corporation in October, 1900, stated in substance that while the $800 \u201cwas loaned to Herman Mendelsohn\u201d and he signed the $800 note \u201cas a co-makeryet he desired to make another and new defense (not stated in defendant\u2019s affidavits of defense) that said loan was \u201cultra vires\u201d the plaintiff corporation. The document introduced did not even tend to prove said new defense and no further evidence to sustain it was introduced by defendant.\nThereupon, to sustain defendant\u2019s so-called \u201cbonus\u201d defense as stated in his petition, defendant testified at length, both on direct and cross-examination, and he called as a witness another brother, Philip Mendelsohn, and he introduced in evidence two certain bills rendered by plaintiff to the Marquette Pharmacy under dates of September 10, 1930 (date of maturity of said note) and October 12, 1931. Barney Mendelsohn did not testify. Defendant\u2019s testimony disclosed that he (Herman) was an attorney at law with an office in Chicago and had practiced his profession for 16 years; that Barney operated a drug store, under the name of the Marquette Pharmacy, at 1121 North State street, Chicago; and that Philip was in the employ of Barney as the manager of and as the pharmacist in the store. And defendant testified as to his version of a conversation had with M. W. Kingsley, plaintiff\u2019s salesman, just prior to the delivery of the note on March 10, 1930.\nOn plaintiff\u2019s behalf, in rebuttal, said Kingsley and one Kritzman (another salesman of plaintiff) and Mark C. Goodman (sales manager of plaintiff) gave testimony, and, thereafter, both Herman and Philip Mendelsohn testified in sur-rebuttal. From the testimony of plaintiff\u2019s witnesses it appeared that for a considerable time prior to March 10, 1930, plaintiff had been supplying the drug store with ice cream, that about said date the business of the store was such that it needed money, and that an application for a loan was made to plaintiff, which resulted in said loan of $800 being made. At the conclusion of the hearing of the evidence the court entered the finding and judgment as above mentioned. And the record discloses that the trial judge said at that time:\n\u201cIt will serve no good purpose for the court to go into the evidence in this case. To put it mildly, somebody is mistaken. ... I can\u2019t imagine this ice cream company coming to a total stranger and giving him $800 without knowing anything about his responsibility. I am inclined to believe that the defendant never had any consideration for this note, and being of that opinion, as I say, there is no use of my discussing the evidence, because it will not help anybody. My conclusion is that this note was given, and this money advanced, for the purpose of obtaining the business; that being true, there will be a finding for defendant. \u2019 \u2019\nIt appears that the case was decided by the trial court in favor of defendant on the so-called \u201cbonus\u201d defense as stated in his petition as above set forth. But no useful purpose will be served in detailing the conflicting evidence. Suffice it to say that after a careful consideration of all the evidence hearing upon said affirmative defense, we are of the opinion that it was not sustained by a preponderance of the evidence, that the court\u2019s finding* was not warranted, and that the court erred in vacating the judgment as confessed against defendant. On cross-examination defendant testified that \u201che did not remember\u201d whether he had prepared this note \u201cin his office on his own typewriter,\u201d but that he \u201cmight have.\u201d If so, and if the sole reasons for his signing the note with his brother, Barney, were as stated in his said petition, it is difficult to perceive why he, an experienced attorney, should sign a judgment note, rather than an ordinary note. Furthermore, he testified to the effect that he had charge, as an attorney, of preparing the schedules in the bankruptcy proceedings for Barney and scheduled said note as a valid obligation of Barney. This action is at variance with the theory of defense to the note as afterward stated in said petition and advanced upon the trial.\nAnd we do not find any evidence in the record to sustain defendant\u2019s further defenses, as stated in his additional affidavit of merits, that he signed the note \u201cas a surety\u201d and that plaintiff made no efforts to collect the note prior to said bankruptcy proceedings. The note itself shows that defendant was a joint maker with Barney and Goodman\u2019s testimony disclosed that repeated efforts to collect the full amount of the note from both Barney and defendant were made by plaintiff without avail.\nAnd in our opinion there is no merit in defendant\u2019s further defense, as stated in his said petition, that after Barney had been discharged by virtue of said bankruptcy proceedings from his obligation on said note, the entry of a joint judgment by confession was erroneous as to both defendants, Barney and Herman. We think it was proper for the court, by its order of November 30, 1932, to \u201cvacate\u201d the confessed judgment as to Barney, and to only \u201copen\u201d the said judgment as to Herman, for the purpose of determining upon a trial on the merits whether or not he was liable to plaintiff on said note. In Seymour v. Richardson Fueling Co., 205 Ill. 77, 83, 84, it is said: \u201cThe rule that, where a money judgment is a unit as to all the defendants, the judgment must be against all or none, does not apply where a personal defense (such as a discharge in bankruptcy) is established as to one or more of the defendants.\u201d And in Hem v. Allen, 179 Ill. App. 223, 228, it is said: \u201cWhere one defendant sets up a defense like a discharge in bankruptcy, which has accrued to him since he signed the joint obligation, such defendant may recover his costs in a suit against both defendants, and yet the plaintiff may be entitled to a judgment against the other defendant.\u201d (See also Byers v. First Nat. Bank of Vincennes, 85 Ill. 423, 425; Perelson v. Podolsky, 191 Ill. App. 589, 591.)\nFor the reasons indicated the judgment of the municipal court of February 17, 1933 (vacating said confessed judgment of November 23, 1932, against defendant, Herman Mendelsohn, and entering a judgment against plaintiff for costs), is reversed, and judgment is entered in this court that said confessed judgment of the municipal court of November 23,1932, for $1,052.56, as against said Herman Mendelsohn only, stand in full force and effect as of the date of its rendition. All costs are to be paid by said Herman Mendelsohn.\nReversed and judgment here.\nSullivan, P. J., and Scanlan, J., concur.\nFinding of facts: We find as facts in this case that the affirmative defenses of Herman Mendelsohn to the judgment note sued upon, as stated in his petitions or affidavits of merits, and as outlined in the opinion of this court this day filed, were not sustained on the trial in the municipal court by a preponderance of the evidence, and that said Herman Mendelsohn, as a co-maker of said note, was indebted to plaintiff, Goodman American Ice Cream Co., on November 23, 1932, on said note, according to its tenor and effect, in the sum of $1,052.56.", "type": "majority", "author": "Mr. Justice Gridley" } ], "attorneys": [ "Samuel Shkolnik, for appellant.", "Michael B. Roderick, for appellee." ], "corrections": "", "head_matter": "Goodman American Ice Cream Company, Plaintiff and Appellant, v. Barney M. Mendelsohn and Herman M. Mendelsohn, Defendants. Herman M. Mendelsohn, Appellee.\nGen. No. 36,798.\nOpinion filed March 6, 1934.\nHeard in the second division of this court for the first district at the June term, 1933.\nSamuel Shkolnik, for appellant.\nMichael B. Roderick, for appellee." }, "file_name": "0253-01", "first_page_order": 311, "last_page_order": 318 }