{ "id": 5786705, "name": "Aaron S. Berkowsky v. Fannie Specter", "name_abbreviation": "Berkowsky v. Specter", "decision_date": "1898-12-12", "docket_number": "", "first_page": "215", "last_page": "217", "citations": [ { "type": "official", "cite": "79 Ill. App. 215" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "118 Ill. 612", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5382600 ], "opinion_index": 0, "case_paths": [ "/ill/118/0612-01" ] }, { "cite": "10 Mass. 223", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2026952 ], "opinion_index": 0, "case_paths": [ "/mass/10/0229-01" ] }, { "cite": "165 Ill. 397", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3103189 ], "pin_cites": [ { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/ill/165/0397-01" ] } ], "analysis": { "cardinality": 270, "char_count": 4016, "ocr_confidence": 0.548, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.347321214480072 }, "sha256": "1e0268e67e980be2289716c91e2b1f0070a3e14c822d981791a9cb1e85a91de4", "simhash": "1:3747e32dd8a980ee", "word_count": 695 }, "last_updated": "2023-07-14T14:55:44.895596+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Aaron S. Berkowsky v. Fannie Specter." ], "opinions": [ { "text": "Mr. Justice Adams\ndelivered the opinion of the court.\nThe appellee was plaintiff and appellant defendant in the trial court, in an action of assumpsit on promissory notes.\nThe defendant pleaded the general issue and a plea of set-off, in form the consolidated common count, alleging an indebtedness from appellee to him of $2.<>00. Among the considerations alleged in the count were goods, chattels and effects, sold, etc., work and services done and performed, and materials furnished, etc.\nIn the bill of particulars, filed September 11, 1897, with the plea of set-off, was the item:\n\u201c To seven years board and room at $25 a month, $2,100.\u201d The defendant having been called and sworn as a witness, his attorney offered to prove by him that, in the year 1890, the plaintiff promised to pay him $25 per month for room and board; that thereafter, defendant provided room and board for her for six and one-half years, and that she had never paid him anything. The court excluded the evidence on the ground that it was inadmissible under the plea of set-off, and the defendant\u2019s attorney moved for leave to amend the plea, which motion the court overruled. The trial occurred October 25, 1897.\nTwo questions are presented for consideration, namely: Was it error to exclude the evidence offered by the defendant? Was it error to deny defendant\u2019s motion to amend his plea ?\nSet-off is a counter-claim in the nature of a cross-action, and any proof competent in support of a declaration containing the common counts is competent under the plea of set-off in the present case. It has been held in a number of cases, that when a contract has been fully executed by one of the parties, and nothing remains to be done by the other party, except the payment of money, a recovery may be had on the common counts. Sands v. Potter, 165 Ill. 397, 407, and cases cited; 2 Greenleaf on Evidence, Sec. 104.\nIn Witter v. Witter, 10 Mass. 223, the court held that board and lodging are included within the meaning of goods delivered and services performed.\nThe exclusion of the evidence was erroneous. The bill of particulars, filed more than a month before the trial, is evidence that the defendant knew, at the time of filing it, the facts which it wrould be incumbent on him to plead. There was no showing of any reason why, if an amendment was necessary, application for leave to amend was not made before the case was called for trial. Therefore, we can not hold that there was any abuse of discretion in denying defendant\u2019s motion for leave to amend. Clause v. Bullock Print. Press Co., 118 Ill. 612; Phenix Ins. Co. v. Stocks et al., 149 lb. 319, 327.\nThe judgment will be reversed and the cause remanded.", "type": "majority", "author": "Mr. Justice Adams" } ], "attorneys": [ "A. y. Eastman, attorney for appellant.", "Sullivan & McArdle, attorneys for appellee." ], "corrections": "", "head_matter": "Aaron S. Berkowsky v. Fannie Specter.\n1. Set-off\u2014Nature of the Action\u2014Competent Evidence.\u2014Set-off is a counter-claim in the nature of a cross-action, and any proof competent in support of a declaration containing the common counts is competent under the plea of set-off.\n3. Pleading\u2014Common Counts, When Sufficient.\u2014When a contract has been fully executed by one of the parties, and nothing remains to be done by the other party, except the payment of money, a recovery may be had under the common counts.\n3. Words and Phrases\u20141 \u2018 Board and Lodging.\u201d\u2014\u201c Board and lodging \u201d are included within the meaning of \u201c goods delivered and services performed.\u201d\n4. Practice\u2014Denying Leave to Amend\u2014Discretion. \u2014Where a bill of particulars, filed more than a month before the trial, shows that the-defendant knew, at the time of filing it, the facts -which it would be incumbent on him to plead, it is not an abuse of discretion to deny his motion for leave to amend, such motion not being made until the\ncase is called for trial.\nAssumpsit, on promissory notes. Appeal from the Superior Court of Cook County; the Hon. Joseph P. Gary, Judge, presiding.\nHeard in this court at the\nMarch term, 1898. Reversed and remanded.\nOpinion filed December 12, 1898.\nA. y. Eastman, attorney for appellant.\nSullivan & McArdle, attorneys for appellee." }, "file_name": "0215-01", "first_page_order": 225, "last_page_order": 227 }