{ "id": 5264597, "name": "Jenkins & Reynolds Co. v. Herman F. Lundgren", "name_abbreviation": "Jenkins & Reynolds Co. v. Lundgren", "decision_date": "1899-11-07", "docket_number": "", "first_page": "494", "last_page": "496", "citations": [ { "type": "official", "cite": "85 Ill. App. 494" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "78 Ill. 487", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 824022 ], "opinion_index": 0, "case_paths": [ "/ill/78/0487-01" ] }, { "cite": "65 Ill. 349", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "88 Ill. 563", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5339619 ], "opinion_index": 0, "case_paths": [ "/ill/88/0563-01" ] } ], "analysis": { "cardinality": 351, "char_count": 6308, "ocr_confidence": 0.507, "pagerank": { "raw": 4.4916476050659184e-08, "percentile": 0.28159305812809937 }, "sha256": "cba368cfe6860067f46aae98881ec420c842a73f029127c10f01f1f54081178f", "simhash": "1:c67acf8105a6ff97", "word_count": 1113 }, "last_updated": "2023-07-14T19:07:53.008228+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Jenkins & Reynolds Co. v. Herman F. Lundgren." ], "opinions": [ { "text": "Mr. Justice Freeman\ndelivered the opinion of. the court.\nThe promise set forth in the declaration is that appellee \u201c would see that \u201d the brick was paid for. This is not a clear and express promise to actually pay for them himself. Its meaning may have been that he, as owner of the premises upon which the house was being erected, would see that the brick was paid for, either by the contractors who signed the order for it, or out of money which would be due them as contractors from appellee. It is not literally an absolute promise to pay the debt himself.\nIt appears that subsequently appellant sent to appellee a notice of lien, and that appellee called and stated that he had overpaid the contractors, but offered to pay appellant a part of its demand, and share the loss. His offer was refused, appellant\u2019s manager telling him the company wanted the full amount. It appears from the evidence of appellant\u2019s witnesses that the account was sent both to the contractors and to appellant, for the reason, as stated by the witness, that it was \u201c customary to send a notice to the owner as well as to the contractor.\u201d\nIt is contended in behalf of appellant that .the promise declared on in this declaration is original and not merely collateral; In Hartley Bros. v. Varner, 88 Ill. 563, cited by appellant\u2019s counsel, there was testimony that Yarner, the appellee in that case, told one Hartley that if the latter\u2019s firm would sell a third party goods he \u201c would see it paid.\u201d There was also additional testimony of an agreement to become responsible, one witness stating that Yarner told him (the witness) that he had authorized the Hartleys to sell goods to the third party, \u201c and he would stand good for the same and pay for them if Beubottom did not.\u201d Here was evidence of an express promise, and the court held it original, not collateral, and hence unaffected by the statute of frauds.\nIn Berkowsky v. Viall, 65 Ill. 349, the promise by an owner to one furnishing materials to a contractor who was putting up a building for such owner, was, \u201c You go on and furnish the. necessary materials to finish the building and I will see that you get your money for what you put in here.\u201d It was held that the promise was original and the owner liable for material thereafter furnished.\nWhether the promise declared on in this case be considered a promise by appellee to pay for the brick himself, or not, it does not appear from the evidence that credit was actually given to appellee. The order for the brick was signed, not by appellee but by the contractors, and a statement of account was made out by appellants against the contractors, jointly with the appellee. This indicates that credit was not given solely to appellee as the original debtor. In Schoenfeld v. Brown, 78 Ill. 487-489, it is said:\n\u201c The test in such cases is, whether the promise is direct or collateral; and the most ready means of solving the question is whether, in such cases as the present, the credit was given to the person making the promise, or to a third person. Where the credit is alone given to the promisor, then the statute can not have any operation, as it only affects verbal promises for the payment of the debt, default or miscarriage of another person.\u201d\nIn the present case the credit clearly appears not to have been given to the appellee alone. The jury having found in favor of appellee we are not warranted by the evidence in disturbing their verdict.\nIt is urged by appellant that the court instructed the jury orally. The so-called oral instruction was to the effect that if they found for the plaintiff their verdict should be for the sum claimed, and if they should find for the defendant, their verdict should be for the defendant. We regard this as a mere explanation as to the form of the verdict, and not such an instruction as, under the statute, is required to be in writing.\nIt is urged that the court erred in refusing to give certain instructions as requested by appellant.\nThe refused instructions told the jury that if they believed certain things from the evidence \u201c then the law is for the plaintiff, and the jury will so find.\u201d The jury were not required to find the law. It was their province to pass upon the facts. JSTo other instructions appear to have been requested, and those refused were not pertinent to the issue raised by the plea setting up the statute of frauds. We regard some of them as erroneous in other respects.\nWe find no reason to interfere with the verdict of the jury and the judgment of the Superior Court, and said judgment is therefore affirmed.", "type": "majority", "author": "Mr. Justice Freeman" } ], "attorneys": [ "J. A. Coleman, attorney for appellant.", "Deo C. Kreidler, attorney for appellee." ], "corrections": "", "head_matter": "Jenkins & Reynolds Co. v. Herman F. Lundgren.\n1. Statute of Frauds\u2014Collateral Promises.\u2014The test whether a promise is direct or collateral is whether the credit was given to the person making the promise or to a third person.\n2. Same\u2014Where Credit is Given to the Promisor.\u2014Where the credit is alone given to the promisor the statute does not apply; it only affects verbal promises for the payment of the debt, default or miscarriage of another person.\nAssumpsit, on promises. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne; Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.\nAffirmed.\nOpinion filed November 7, 1899.\nStatement.\u2014This is an action wherein the appellant, a corporation, seeks to recover upon an alleged verbal promise, by the appellee, to the effect, as stated in a special count of the declaration, that if, at his request, appellant would sell and deliver to a third party certain pressed brick, to be used in a house then being built by appellee, he \u201c would see that the said plaintiff (appellant) was paid therefor.\u201d It is alleged that appellant did thereupon sell and deliver said brick at appellee\u2019s premises on the order of said third party. The declaration also contains the common counts.\nTo this declaration appellee pleaded the general issue, and also pleaded that the alleged contract being to answer for the debt of another, and verbal, is void by the statute of frauds.\nThe case has been twice tried. In the trial now appealed from no evidence was offered on the part of appellee, but the jury found in his favor, as had been the result at the previous trial.\nJ. A. Coleman, attorney for appellant.\nDeo C. Kreidler, attorney for appellee." }, "file_name": "0494-01", "first_page_order": 504, "last_page_order": 506 }