{
  "id": 5255235,
  "name": "Louis M. Stumer et al. v. Cora Wilson",
  "name_abbreviation": "Stumer v. Wilson",
  "decision_date": "1899-04-17",
  "docket_number": "",
  "first_page": "384",
  "last_page": "386",
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    "name": "Illinois Appellate Court"
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  "last_updated": "2023-07-14T16:39:38.340689+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Louis M. Stumer et al. v. Cora Wilson."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Windes\ndelivered the opinion .of the court.\nAppellee recovered a judgment against appellants, Stumer and Eosenthal, before a justice of the peace, from which they appealed to the Circuit Court, where a trial before the court and a jury resulted in a judgment against them for $ 127, from which they have taken this appeal.\nIt is claimed that the suit was instituted before the justice against appellants and one Louis Eckstein as partners, under the name of the Millinery World; that no service was had on Eckstein either before the justice or in the Circuit Court, and it was therefore error to take judgment against appellants. Whatever may be the merit of such a contention, it is sufficient to say, as is the fact, that the abstract fails to show that the suit was ever brought against Eckstein, or that he was jointly liable with appellants.\nWhen error is claimed, it should be shown by the abstract or it will not be considered. City of Chicago v. Fitzgerald, 75 Ill. App. 177, and cases cited; Harper v. Dixon, 70 Id. 136.\nAppellee\u2019s claim is \"based on her wrongful discharge by appellants, in violation of a verbal contract alleged to have been made between her and appellant Kosenthal, by which she was employed as trimmer to work for'appellants in the millinery business from March 29 to June 26, 1897, at $20 per week. There was no material conflict in the evidence except as to the duration of the contract and whether appellee was, under its terms, required to work nights. This conflict presented a question peculiarly for the jury, and we can not say the verdict is manifestly against the weight of the evidence.\nAppellants contend that, admitting there was a contract, as appellee testified, still there was adequate cause for appellee\u2019s discharge, and she can not recover. Appellants say they discharged appellee because she refused to work nights, and offered evidence as to an alleged custom to that effect in the busy season of the millinery trade. If it be conceded there was such a custom, that would not conclude appellee. She testified that it was part of her contract she was not to work nights. Kosenthal says he told her she would be obliged to work nights. It was for the jury to say which was right.\nThe only instruction given, and that was on behalf of appellee, while basing her right of recovery on the wrongful discharge, would seem also to require that \u201c she was ready, able, willing, and offered to work and perform her duties\u201d pursuant to the contract. Appellants claim that the evidence fails to show that she expressed her willingness to work, or offered to work and complete the contract, and therefore, under the instruction, appellee could not recover.\nThe jury evidently disregarded the instruction of the court, and was right. The evidence shows that appellee was discharged, and appellants say rightfully so. Appellee says that when she was discharged Mr. Rosenthal said, \u201c Hurry up and get out of here as quick as you can. If you do not, I will kick you out.\u201d It is true this language is denied, but that she was discharged is affirmed. That being so, appellee was not thereafter required, under the law, to offer to work before she could recover for the breach of her contract by reason of a wrongful .discharge. Chicago House Wrecking Co. v. Rice Co., 67 Ill. App. 686; Mo. & Ill. Coal Co. v. Pomeroy, 80 Ill. App. 144.\nThe further claim is made that there is no evidence that shows the liability of Stumer, and as the judgment is a unit, it can not stand.\nThe record shows that appellants were sued as partners, joint liability was not denied by affidavit, and under the statute (2 S. & C., Ch. 79, Sec. 64) appellee need not prove the joint liability, in the first instance, under such circumstances. There being no reversible error shown, the judgment is affirmed.",
        "type": "majority",
        "author": "Mr. Presiding Justice Windes"
      }
    ],
    "attorneys": [
      "Joseph W. Errant, attorney for appellants.",
      "P. W. Sullivan, attorney for appellee."
    ],
    "corrections": "",
    "head_matter": "Louis M. Stumer et al. v. Cora Wilson.\n1. Appellate Court Practice\u2014Error Must be Shoion by the Abstract.\u2014When ei\u2019ror is claimed, it must be shown by the abstract or it will not be considered.\n2. Contracts\u2014Offer to Perform\u2014 When Not Necessary.\u2014Where an employe under a contract is wrongfully discharged, he is not afterward required to offer to work before he can recover for breach of the contract by reason of such wrongful discharge.\n3. Partners\u2014Joint Liability.\u2014Where parties are sued as partners and their joint liability is not denied by affidavit, under the statute (2 S. & C., Ch. 79, Sec. 64), the plaintiff need not prove such joint liability in the first instance.\nAssumpsit, for wages. Trial in the Circuit Court of Cook County; the Hon. Charles A. Bishop, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1898.\nAffirmed.\nOpinion filed April 17, 1899.\nJoseph W. Errant, attorney for appellants.\nP. W. Sullivan, attorney for appellee.\nWhere one or more defendants in an action ess eontmetu are not served, it is proper to take a judgment against those who are served. 3d Starr and Curtis\u2019 Ann. Stat., Practice Act, Chap. 110, Par. 10, Sec. 9; Fender v. Stiles, 31 Ill. 460; Pierson v. Hendrix, 88 Ill. 34; Coursen v. Hixon, 78 Ill. 339.\nThe writ of scire facias, contemplated in section 9 of the practice act, is a writ of summons and nothing more. Coursen v. Hixon, 78 Ill. 339.\nWhen several joint debtors are sued and one or more of them shall not be served with process, the recovery of the judgment against the parties'served shall be no bar to a recovery on the original cause of action against such as are not served. 3d Starr and Curtis\u2019 Ann. Stat., Practice Act, Chapl 110, Par. 12, Sec. 11."
  },
  "file_name": "0384-01",
  "first_page_order": 382,
  "last_page_order": 384
}
