{ "id": 5194475, "name": "John Purcell v. J. C. Henry", "name_abbreviation": "Purcell v. Henry", "decision_date": "1896-12-14", "docket_number": "", "first_page": "256", "last_page": "260", "citations": [ { "type": "official", "cite": "67 Ill. App. 256" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "25 Ill. App. 480", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4937030 ], "opinion_index": 0, "case_paths": [ "/ill-app/25/0480-01" ] }, { "cite": "50 Ill. 290", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2606286 ], "opinion_index": 0, "case_paths": [ "/ill/50/0290-01" ] } ], "analysis": { "cardinality": 433, "char_count": 8797, "ocr_confidence": 0.511, "pagerank": { "raw": 6.087085966315723e-08, "percentile": 0.37762278804671623 }, "sha256": "8debdc37f41169e92e6c9efc6d02b8e5d2447c586b8a84a1513eaf3eb7f853c7", "simhash": "1:b461643c7bc50498", "word_count": 1552 }, "last_updated": "2023-07-14T17:00:34.097112+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "John Purcell v. J. C. Henry." ], "opinions": [ { "text": "Mr. Presiding Justice Shepard\ndelivered the opinion of the Court.\nThis action was brought by appellee, as plaintiff, to recover from, the appellant, as defendant, for a quantity of cord wood claimed to have been sold and delivered.\nThe defendant being defaulted for want of appearance, judgment for $804.53 was rendered against him.\nA few days later, at the same term, the defendant appeared, and upon a showing made by affidavit, the court ordered a vacation of the judgment, but refused leave to the defendant to plead.\nThe defendant, by his affidavit, admitting that $233.31 was due from him to the plaintiff, it was not error to refuse him leave to plead. The only defense was as to the amount due, and that question could be just as well tried upon the assessment of damages without a plea as with one.\nSubsequently, the cause was submitted to a jury to assess the plaintiff\u2019s damages, and upon the verdict for $772.80, judgment was rendered.\nUpon that trial the defendant appeared, by counsel, and cross-examined the plaintiff\u2019s witnesses, but offered no evidence in his own behalf, as he had the right to do.\nThe errors assigned raise the questions that the -verdict was contrary to the evidence, and that there was error in admitting improper evidence.\nThe plaintiff testified that the oral contract he had with the defendant was to ship to him wood from Indiana, at $3.50 a cord, less the freight to defendant\u2019s wood-yard in Chicago, and that he delivered wood to defendant under such contract, but he was unable to state how much, or what amount was due from the defendant on account thereof, he stating that his book-keeper, Eiley Scholl, knew of the condition of the account. He also testified that he delivered one car load of eleven cords of a different kind of wood from that contemplated by the contract, but in answer to a question by his counsel as to the value of such wood, his answer was that \u201c we sold it to others at four and a-half \u201d dollars a cord.\nScholl; the book-keeper, was called, and in answer to a question by plaintiff\u2019s counsel as to whether he was familiar with the shipments of wood by plaintiff to defendant, he answered: \u201c Ho, but I am familiar with Mr. Henry\u2019s books.\u201d\nThis answer was followed by another question, as to whether he knew the number of cords shipped (which question was objected to by defendants, on the ground that the books wo\u00fald be the best evidence, but the objection was overruled and an exception duly taken to the ruling), to which he answered': \u201c Yes, sir; something near it.\u201d Then\nin answer to the direct question of how many cords were shipped (to which there was also an overruling of an objection that was interposed and due exception taken), he answered, 775 11-82 cords of one kind, and eleven cords of another.\nThe examination then proceeded at some length, as to what amount the defendant had been credited with, and as to the value of the separate car load of eleven cords, when the court interrupted with a remark, which, together with all that followed, we quote:\n\u201c The Court: Why not find out how much they owe you?\nMr. Blake: What is the balance due ? A. That is with the amount that was paid recently ?\nQ. Deducting the amount paid us, what is the balance due ? A. $772.80.\nThe Court: That is all there is of thislawsuit, $772.80.\u201d\nAnd there the evidence closed.\nThere were no instructions given to the jury, and none were asked.\nThe jury then returned a verdict for the amount stated in the final remark by the judge, and judgment upon the verdict was rendered.\nA motion thereupon followed to set aside the judgment, which, being continued, was, at a subsequent term, overruled and this appeal has followed.\nIt must be apparent, we think, that there was no competent evidence to sustain the verdict.\nThe only witness who testified to the condition of the account between the parties and to the balance due, stated that he was not familiar with the shipments of wood, but was familiar with plaintiff\u2019s books.\nThe books were not introduced or offered, even if they would have furnished competent evidence of anything. The only evidence of the shipment of any wood consisted in the testimony of the plaintiff that some wood was delivered, but he did not know how much, and of the book-keeper that he knew \u201c something near \u201d the number of cords shipped, and then went on to specify what the number was.\nHow it was that this witness knew, in the absence of the books, what they showed, and how he knew what shipments were made, when he had testified previously that he did not know mor\u00e9 than \u201c something near \u201d to it, is not made to appear in the case.\nAfter he had testified to what was in substance equal to saying that he knew nothing about thematter, except what the books showed, his testimony was properly objected to, and the objection was improperly overruled.\nBook accounts can not be proved in such a way, and shipments or deliveries of goods are required to be proved by the testimony of a witness who knows of them, or by some other competent evidence. Neither course of making the proof was observed in this instance.\nBut it is said that the error can not be urged because there was no motion for a new trial.\nTo deny that there was a motion for a new trial, is to assume that the motion to vacate the judgment was not equivalent to a motion for a new trial. But, however that may be, the incompetent testimony was objected to, and the grounds of the objection stated, as soon as it was offered, and the ruling of the court in overruling the objection was promptly excepted to.\nThe late Mr. Justice Bailey stated the rule to be as follows : Court, though no motion for a new trial has been interposed in the trial court. * * * Alleging in a motion for a new trial errors of law committed during the trial, is merely calling upon the judge to decide a question which he has already determined, a second time. * * * The view above expressed is fully sustained by Smith v. Gillett, 50 Ill. 290, where, after consideration of various authorities, it was held that a decision of the trial court improperly excluding competent evidence, if excepted to at the time, may be assigned for error in an Appellate Court, though no motion for a new trial has been made.\u201d Leyenburger v. Paul, 25 Ill. App. 480.\n\u201c The rule seems to be that errors of law committed by the judge during the progress of the trial and duly excepted to at the time, may be assigned for error in an Appellate\nThere was no exception taken to the final remark of the court, which,-it is argued, was what the jury predicated their verdict upon, and we will not comment concerning it.\nProbably the plaintiff should have been required to file a bond for costs, but it appearing from defendant\u2019s own affidavit that a judgment for at least $233.31 should go against him, it does not appear that the error, if it were such, in denying his motion that plaintiff be required to file a bond, could, under any circumstances, injure him.\nThe judgment will be reversed and the cause remanded, unless the appellee shall elect, within ten days, to remit from his judgment down to the sum of $233.31, admitted by the defendant to be due.", "type": "majority", "author": "Mr. Presiding Justice Shepard" } ], "attorneys": [ "Bantz & Casey, attorneys for appellant.", "Allen & Blake, attorneys for appellee." ], "corrections": "", "head_matter": "John Purcell v. J. C. Henry.\n1. Practice\u2014Refusal to Allow Filing of Plea\u2014When Proper.\u2014 Where a defendant admits an indebtedness to the plaintiff, it is not error to refuse him leave to plead. The question being as to the amount due, can just as well be tried-upon the assessment of damages, without a plea as with one.\n2. Same\u2014Motions for Neio Trial\u2014When Not Necessary.\u2014Errors of law committed by the judge during the progress of the trial, and duly excepted to at the time, may be assigned for error in an Appellate Court, though no motion for a new trial was interposed in the trial court.\n3. Same\u2014Bond for Costs\u2014When Failure to Require Not Ground for Complaint.\u2014It appearing from a defendant\u2019s own affidavit that a judgment for some amount should be rendered against him, a refusal to require a non-resident plaintiff to file a cost bond could, under no circumstances, injure such defendant, and he can not complain.\n4. Evidence\u2014What Competent to Prove State of Account.\u2014A witness who states that he is not familiar with the deliveries of goods by the plaintiff to the defendant, but is familiar with the plaintiff\u2019s books and knows \u201csomething near\u201d the amount of goods delivered, should not be allowed to state the condition of the account between the parties without reference to the books.\nAssumpsit, on the common counts. Error to the Circuit Court of\nCook County; the Hon. Charles Gr. Neely, Judge, presiding.\nHeard in this court at the October term, 1896.\nReversed and remanded, unless remittitur be entered.\nOpinion filed December 14, 1896.\nBantz & Casey, attorneys for appellant.\nAllen & Blake, attorneys for appellee." }, "file_name": "0256-01", "first_page_order": 254, "last_page_order": 258 }