{
  "id": 5788039,
  "name": "William Fitzgerald v. James Lorenz",
  "name_abbreviation": "Fitzgerald v. Lorenz",
  "decision_date": "1899-01-09",
  "docket_number": "",
  "first_page": "651",
  "last_page": "655",
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    {
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      "cite": "79 Ill. App. 651"
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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    {
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  "analysis": {
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  "last_updated": "2023-07-14T14:55:44.895596+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "William Fitzgerald v. James Lorenz."
    ],
    "opinions": [
      {
        "text": "\u00b0 Mr. Justice Adams\ndelivered the opinion of the court.\nAppellant\u2019s counsel contends that the variance between the original declaration and the notes put in evidence is fatal; that the court erred in permitting an amendment of the declaration; that the amendment was so made that it is impossible to determine in what part of the declaration it belongs; that it is not supported by the proof; that the court erred in ordering the plea of the general issue to stand as a plea to the amended declaration, and in overruling the demurrer to the amended declaration, etc., and that the judgment is excessive.\nThe declaration does not purport to set out the notes sued on in haec verba, but only in accordance with their legal effect, and the latter is the proper and scientific mode of declaring on a contract. 1 Chitty PL, 9th Am. Ed., p. 805; Crittenden v. French, 21 Ill. 598.\nThe legal implication from the words used in the notes, viz., \u201c interest at 6 per,\u201d is that they were to bear interest at the rate of six per cent per annum.\nIn Gramer v. Joder, 65 Ill. 314, the note sued on read : \u201c One year after date I promise to pay to the order of Barbary Joder, the sum of four thousand dollars at ten per cent value received.\u201d Held, the meaning was that the note bore interest at the rate of ten per cent per annum.\nIn Thompson v. Hoagland, 65 Ill. 310, the note read, \u201c One year after date I promise to pay Wm. Thompson, or order, $374.79, at ten per centum from date.\u201d Held, that the note bore interest at the rate of ten per cent per annum.\nIt will be observed that in neither of the two cases last cited was the word \u201c interest \u201d contained in the note. See also Williams v. Baker, 67 Ill. 238; and Belford v. Beatty, 46 Ill. App. 539.\nIt follows from these authorities that the averment in the original declaration, that the notes were payable, \u201c with interest at six (6) per cent per annum,\u201d was in accordance with the legal effect of the notes. This being so, if the amendment was not properly made, as appellant\u2019s counsel contends, the irregularity is immaterial. But we do not agree with counsel for appellant that it can not be determined in what part of the declaration the amendment is to appear. It is to appear after the word \u201c per \u201d and as a substitute for the words \u201c cent per annum,\u201d which last words are to be stricken out, and there is not the least difficulty in ascertaining the places where the words \u201cper cent per annum \u201d occur, there being only two such places1 in the declaration, one in each of the special counts. If, then, the declaration be considered as amended, and the question whether the words \u201c interest at six per \u201d mean interest at the rate of six per cent per annum, solely a question of fact, the jury were fully warranted in their finding.\nIn Thompson v. Iloagland, sufra, the court say:\n\u201c The word interest is not found in the note, yet we can not but consider it, and it would be received in the money market, as a note bearing ten per cent interest per annum from its date. That would be the common judgment of any body of men to whom it should be submitted.\u201d\nSuch was the understanding of the parties themselves. On the $1,000 note is indorsed a receipt of James Lorenz, of date February 1, 1896, for $70, \u201c being interest in full to above date.\u201d This is exactly the amount due February 1, 1896, for interest from December 1,1894, at the rate of six per cent per annum. On the note for $900, and under date July 1, 1896, is a receipt for $85.50 \u201cinterest,\u201d the exact amount of interest due from the date of the note to July 1, 1896, at the rate of six per cent per annum.\nWhen the court permitted the amendment of the declaration, appellant did not move for leave to file an additional plea. He can not now, therefore, be heard to complain. Knefel v. Flanner, 166 Ill. 147.\nIt does not appear from the record that appellant has any defense inadmissible under the general issue. On the trial he offered no evidence, his sole defense apparently consisting of objections. Appellant\u2019s demurrer was to the whole declaration, was general, and was properly overruled. Appellant\u2019s counsel suggests that the judgment is greater than warranted by the evidence. The amount of the judgment is not in excess of principal and interest due November 11, 1897, the date of the trial, after deducting all payments proved.\nThe record in this case is made up in a very slovenly manner, and with little regard to the chronological order of the proceedings in the trial court, and not at all in conformity with rule 1 of this court.\nThe judgment will be affirmed.",
        "type": "majority",
        "author": "\u00b0 Mr. Justice Adams"
      }
    ],
    "attorneys": [
      "C. M. Hardy, attorney for appellant.",
      "Charles S. MoNett, attorney for appellee."
    ],
    "corrections": "",
    "head_matter": "William Fitzgerald v. James Lorenz.\n1. Pleading\u2014Proper Mode of Declaring upon a Contract.\u2014 The proper and scientific mode of declaring upon a contract is to set it out in accordance with the legal effect.\n2. Same\u2014Upon a Note with Defective Interest Clause.\u2014A declaration \u201c with interest at six (6) per cent per annum,\u201d is properupon a note in the following language: \u201c\u00a71,000 Chicago, Ills., December 1, 1894.\nFourteen months after date, I promise to pay to the order of James Lorenz, one thousand dollars, payable at Gerald building, value received, interest 6 per.\u201d\n3. Contracts\u2014Interpretation of, When a Question of Fact.\u2014The question as to whether the words \u201c interest at six per\u201d in a promissory note mean interest at the rate of six per cent per annum, is a question of fact.\nAssumpsit, on a promissory note. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding.\nHeard in this court at the March term, 1898.\nAffirmed.\nOpinion filed January 9, 1899.\nStatement.\nThis is an appeal from a judgment in favor of appellee rendered in an action of assumpsit by appellee against appellant. The declaration, filed October 31,1894, contains two special counts and the common counts. The first special count avers:\n\u201c That William Fitzgerald, on the 1st day of December, 1894, made his promissory note, bearing date the day and year aforesaid, and then and there delivered the said note to Dames Lorenz, the plaintiff, in and by which said note the said defendant, by the name, style and description of Wm. Fitzgerald, promised to pay to the order of said plaintiff, fourteen months after the day and year last aforesaid, $1,000, payable at Gerald building, \u2018 with interest at six (6)'per cent per annum.\u2019 \u201d\nThe second count differs from the first only in being on another note for the sum of $900, due eighteen months after December 1, 1894.\nAppellant, May 5, 1897, pleaded the general issue, and November 11, 1897, the case was called for trial, and the notes sued on being offered in evidence by appellee, appellant objected on the ground that the averment in each special count of the declaration with regard to interest was \u201c with interest at six (6) per cent per annum,\u201d whereas the note offered in evidence read merely \u201c interest at 6 per.\u201d Thereupon appellee made a cross-motion for leave to amend his declaration, which the court allowed, and overruled appellant\u2019s objection,and appellee filed the following amendment:\n\u201c Lorenz \") Fitzgerald. )\nJames Lorenz, by Charles MeNett, his attorney, amends his declaration as follows: On line 34, after the word 6 per,\u2019\nstrike out the words, \u2018 cent per annum,\u2019 and insert the words 1 meaning thereby to pay interest at the rate of six per cent per annum.\u2019\nOn line 17, page one, after word \u2018per,\u2019 strikeout same words as above; strike out and insert same words as above inserted.\nCharles S. McNett,\nPill\u2019s Attorney.\u201d\nThe amendment was filed after the jury retired to consider of their verdict.\nThe trial proceeded, and the jury returned a verdict for the appellee and assessed appellee\u2019s damages at the sum of $1,734.33. November 27, 1897, after the verdict was rendered, appellant, by leave of court, filed a demurrer to the amended declaration, which the court overruled and ordered that the plea of the general issue theretofore filed to the original declaration, should stand as a plea to the amended declaration, overruled appellant\u2019s motion for a new trial and rendered judgment on the verdict.\nC. M. Hardy, attorney for appellant.\nCharles S. MoNett, attorney for appellee."
  },
  "file_name": "0651-01",
  "first_page_order": 661,
  "last_page_order": 665
}