{
  "id": 5173524,
  "name": "L. Gustav Hallberg v. Z. P. Brosseau",
  "name_abbreviation": "Hallberg v. Brosseau",
  "decision_date": "1896-06-01",
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  "first_page": "520",
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  "analysis": {
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  "last_updated": "2023-07-14T18:42:36.948645+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "L. Gustav Hallberg v. Z. P. Brosseau."
    ],
    "opinions": [
      {
        "text": "Mr.. Presiding Justice Gary\ndelivered the opinion op the Court.\nErrors assigned and not argued, will not be noticed. Cook v. Moulton, 59 Ill. App. 428.\nThe action is assumpsit upon a guaranty under seal, indorsed upon a lease, of the performance of the covenants of the lessee.\nThe issues upon which the case was tried, were, first, upon non-assumpsit, and second, whether the appellant accepted from the lessee a promissory note running thirty days as payment of $400 of the rent sued for. Upon the second issue there is no evidence tending to justify the verdict, which in effect finds that issue in favor of the appellee.\nAll there was of that transaction was that the lessee asked the agent of the appellant if the appellant would not take a note, and he did not know; the lessee sent the note, and called on the appellant shortly before it was due, and told him that she could not pay it, and he gave it back to her.\nA motion that the court instruct the jury, without presenting the instruction, is not sufficient to base an assignment of error upon. Wenona Coal Co. v. Holmquist, 152 Ill. 581; Ames & Frost Co. v. Stackurski, 46 Ill. App. 310.\nWe need not consider the abstract question of the right of the appellant to a specific instruction that the jury should find for him a sum named in the instruction, as no such instruction was asked. But upon the evidence no effect should be given to the transaction of sending the note. Cheltenham S. & G. Co. v. Gates Iron Works, 124 Ill. 623.\nEight hundred and fifty dollars of rent was due, and the jury found for the appellant $450.\nThe motion of the appellant for a new trial because the verdict was for a less sum than he was entitled to, should have been granted; but his motion for a judgment non obstante veredicto, and his appeal to this court to give him a judgment for $850, are both in disregard of the right of the appellee to a trial by jury.\nThe record was in no shape to warrant the motion for judgment non obstante (Florsheim v. Dullangham, 58 Ill. App. 626), and no court is authorized to enter a judgment upon a verdict for a sum greater than the verdict, except for interest accrued in the interval between the two. Sec. 3, Ch. 74, \u201c Interest;\u201d Hirth v. Lynch, 96 Ill. 408; Frazier v. Laughlin, 1 Gilm. 347; Hinckley v. West, 4 Gilm. 136.\nThe appellee assigns cross-errors because to some of his pleas demurrers were sustained.\nFirst, no consideration for the guaranty. This is no plea to a sealed instrument, unless it is such an instrument as is within Sec. 9, Oh. 98, \u201c Negotiable Instruments.\u201d\nThe statute is the same in substance now as it was in 1841, when in Dunbar v. Bonesteel, 3 Scam. 32, it was held that a lease was not within it; and practically the guaranty and lease are one instrument. Otto v. Jackson, 35 Ill. 349.\nSecond, that the lease was not signed by the appellant or by any one by him in writing authorized. The purpose seems to be to set up the statute of frauds; which is the personal privilege of the appellant only. Chicago Dock Co. v. Kinzie, 49 Ill. 289.\nIf intended to dispute the execution of the lease by the appellant for the purpose of showing that no estate passes, or demise was made, L. N. A. & C. Ry. v. Carson, 51 Ill. App. 552, 151 Ill. 444, is authority that permitting the lessee to enter under it (which being shown by the declaration and not.denied by the plea is admitted), is a ratification by the appellant of the lease. Other pleas are inartificial pleas of termination of the lease by different causes after most, if not all, of the rent sued for accrued, and being pleaded to the whole action, were bad for that, if no other reason.\nThis action is assumpsit. Most good defenses are admissible under the general issue. 1 Ch. PL, 419, Ed. 1828.\nWhile under the statute the defendant has the right to plead, at first, as many pleas as he will, yet ivhen he wishes to put in additional pleas thereafter, the court may, and if such additional pleas tend only to confusion and delay, ought to, refuse leave to file them. Bemis v. Horner, 44 Ill. App. 317; 145 Ill. 567; Dow v. Blake, 46 Ill. App. 329; 148 Ill. 76.\nHowever instructive to attorneys to practice their skill in pleading, the end does not justify the means.\nFor anything indicated by this record, the appellant ought to recover all unpaid rent, with interest since it became due.\nThe judgment is reversed and the cause remanded.",
        "type": "majority",
        "author": "Mr.. Presiding Justice Gary"
      }
    ],
    "attorneys": [
      "Jno. R. Montgomery, attorney for appellant.",
      "Samson & Wilcox, attorneys for appellee."
    ],
    "corrections": "",
    "head_matter": "L. Gustav Hallberg v. Z. P. Brosseau.\n1- Errors\u2014Assigned but Not Argued.\u2014Errors assigned and not argued will not be noticed.\n2. Practice\u2014 Reguest for Instructions.\u2014A motion for the court to\ninstruct the jury, without presenting the instructions, is not sufficient to base an assignment of error upon.\n3. Same\u2014Additional Pleas.\u2014Under the statute a defendant has at first the right to plead as many pleas as he desires to, but when he asks to file additional pleas thereafter the court may, and if such additional pleas tend only to confusion and delay, ought to, refuse leave to file them.\n4. New Trials.\u2014Verdicttoo Small.\u2014A motion for anew trial should be allowed where the verdict is for a less sum than the evidence shows the party is entitled to.\n5. Judgments\u2014Must Follow the Verdict\u2014Exception.\u2014No court is authorized to enter a judgment upon a verdict for a greater sum than the verdict, except for interest accrued in the interval between the two.\n6. Pleading\u2014No Consideration to Sealed Instrument.\u2014A plea of no consideration in an action upon a sealed instrument is bad unless it is such an instrument as is within section 9, chapter 98, R. S., entitled Negotiable Instruments.\n7. Same\u2014Statute of Frauds.\u2014A plea setting up the statute of frauds in an action upon an instrument in writing, is a personal privilege.\nAssumpsit, on a guaranty under seal indorsed upon a lease. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.\nHeard in this court at the March term, 1896.\nReversed and remanded.\nOpinion filed June 1, 1896.\nJno. R. Montgomery, attorney for appellant.\nSamson & Wilcox, attorneys for appellee."
  },
  "file_name": "0520-01",
  "first_page_order": 518,
  "last_page_order": 520
}
