Court Record of Isaac G. Israel

Source: Reports Of Cases Illinois
Written: 1849

Isaac G. Israel, who sues for the use of B. B. Scholl, v. William T. Reynolds
et al.

Error to Pike.

1. Pleading — indemnity bond. In an action upon an instrument of indemnity,
the plaintiff must aver, in the declaration, that it was given for a
sufficient consideration, and that he has been damnified by having to pay.

2. Practice — demurrer, general. Where a general demurrer is filed to several
counts in a declaration, one of which is good, the demurrer should be
overruled.(l)

This action was commenced by attachment. The first four counts in the
declaration were special, and founded upon the following instrument of writing:

"St. Louis, Feby 5th, 1848.
"I. G. Israel, esq.
"Dear Sir: In accordance with your request, we herein state, that according to
our understanding with you, when we purchased your property, known as St.
Louis, Ill., we will pay for the boiler purchased by you, for your saw mill,
and not yet paid for by you, with the understanding, that the cost of said
boiler does not exceed three hundred and fifty (350) dollars.
"Yours, truly, W. T. Reynolds & Co."

The fifth count, was for work and labor; goods, wares and merchandize, sold
and delivered; money paid, laid out, and expended, and an account stated.

To this declaration the defendants filed a general demurrer to the first,
second, third, fourth and fifth counts; and to all the counts of said
declaration, except the first, second, third, fourth and fifth, pleaded the
general issue; to which last plea a similiter was added. There was a joinder
in demurrer. The judgment of the court below on the demurrer, is as
follows: "The demurrer filed to the first, second, third, fourth and fifth
counts being heard, is sustained, and leave is given plaintiff to amend the
second count in his declaration." The plaintiff abided by the counts in his
declaration, except as to the second count. This count was amended, demurred
to as amended, and demurrer sustained. A trial by jury was had, on the issue
joined, as the record represents, and a verdict was found for the defendant at
April term, 1849, before Minshall, judge. A motion for a new trial was made by
the plaintiff, which was overruled. A bill of exceptions was filed, which it
is unnecessary to notice, as the opinion of the courtis founded upon matters
extraneous of the statements in the bill.

The first count in the declaration states, that the defendants, as co-
partners, made their certain instrument in writing, bearing date, etc., and
thereby, then and there, promised the plaintiff in the words and figures
following, to wit (here setting forth the foregoing instrument verbatim); and
then and there delivered the said instrument or undertaking in writing, to the
said plaintiff, and avers that the boiler cost the sum of three hundred and
fifty dollars, and that the cost of the boiler did not exceed the sum of money
in the said instrument, etc., specified, and the said defendants then and
there, in consideration of the premises, undertook and promised to pay to the
said plaintiff the said sum of three hundred and fifty dollars, according to
the tenor and effect of said instrument, etc.; avers the indorsement before
payment to one Stephen H. Gray, and an indorsement from Gray to the said
Edward B. Scholl, for whose use this suit is brought; by means whereof, and by
force of the statute, the said defendants became liable to pay Scholl the sum
of money in the said instrument, according to its tenor and effect; and, being
so liable, undertook and promised to pay the plaintiff, for the use of Scholl,
the sum of money specified in the said instrument or undertaking in writing,
according to the tenor and effect thereof. The second count is like the first,
omitting an averment of the assignments. The third count omits the instrument,
but sets forth its tenor and effect, and omits averment of assignment, but is
in other respects like the first count. The fourth count sets forth, that the
defendants made their certain other instrument or undertaking in writing,
bearing date a certain day and year therein mentioned, to wit, the day and
year aforesaid, and then and there delivered the same to the said plaintiff,
and then and there promised to pay the said plaintiff the sum of three hundred
and fifty dollars, according to the tenor and effect of said instrument or
undertaking in writing. The fifth count is the common count. The only breach
assigned is at the conclusion of the fifth count.

The plaintiff below sued out this writ of error, and assigns for error the
refusal of the court below to grant a new trial; the sustaining of the
demurrer to the first five counts, respectively, of said plaintiff's
declaration; that the verdict of the jury and judgment of the court is
contrary to the law and evidence, and that the verdict and judgment should
have been for the plaintiff, and not for the defendant.

C. A. Warren and O. C. Skinner, for plaintiff in error, make the following
points: 1. The defendant's demurrer is general, and to the first five counts
of the declaration, and includes the first common count. He insists that the
first, third and fourth special counts are good on general demurrer; but if
held bad the fifth count is good, and, therefore, the demurrer should have
been overruled. 2. The second special count overruled is good, and the
demurrer to this count should have been overruled. 3. The paper evidence
offered was proper in support of the common counts. 5 Gil., 587; 4 ibid, 46,
48; 2 Greenl., secs. 113, 114. 4. The court should have granted a new trial.
To the first point, the following authorities: Breese, 53; 1 Scam, 421; 3
Black. R. 167; 3 Black. R., 251. 5. Although the written instrument did not
make complete proof, yet, if it tended to prove a liability to pay, it ought
to have gone to the jury.

R. S. Blackwell and M. Hay, for defendants in error: The first count is bad,
and the demurrer properly sustained. 1. The instrument is not embraced within
the provisions of the statute. R. S., 384, sec. 3; because no certain sum is
named in the instrument; because payable on a contingency. Cogshell v.
Cogshell, 1 Strobhart R., 43. Because no person named therein as payee. Mayo
v. Chenoweth, Breese R., 155; Walters v. Short, 5 Gil., 252. Therefore, a
consideration should be averred in the declaration; the instrument creating no
legal liability. Letcher v. Taylor, 2 Bibb, 572, 585; Prior v. Linsey, 3 Bibb,
76-7. 2. If the instrument does not import a consideration, because not within
the statute, and the instrument set out in this count, in hoec verba, showing
upon its face a past and executed consideration, the count should aver that
the boiler was purchased at the request of Reynolds & Co. Comstock v. Smith, 7
John., 87; Parker v. Crane, 6 Wend., 647. 3. The count showing a promise by
Reynolds & Co. to pay for a boiler already purchased by Israel, it is in the
nature of a promise to indemnify Israel, and he should aver that he had paid,
for the boiler, or that he has been damnified in some way. 4. If the
instrument is negotiable under our statute, the count shows that Israel parted
with his title by assignment, and he can not, therefore, maintain an action
upon it. Campbell v. Humphries, 2 Scam., 478.

The second count has been abandoned, by asking leave to amend. The amended
second count is clearly bad, being incomplete and uncertain. The third count
is clearly defective. 1. No consideration is directly averred. 2. The one
inferentially alleged is past and executed. 3. There is no averment as to whom
the money is to be paid. 4. No breach of the promise is alleged. The fourth
count is bad. 1. There is no consideration set forth. 2. No time of
performance is alleged. 3. No breach is averred.

There is a misjoinder of parties, in the several counts of the declaration,
therefore demurrer was properly sustained to the whole declaration. 1 Chitty's
Plead., 236, 704. The court can take no notice of the errors predicated upon
the bill of exceptions, because it is informal and insufficient. 3 Scam., 63.

Admitting that the demurrer was improperly sustained to the fifth count, yet
the court will not reverse the judgment. 1. Because they have committed the
first irregularity in not joining in our demurrer to their declaration; which,
under ordinary circumstances, would amount to a discontinuance. 2. Because
they could have offered no evidence under the common counts, but the writing
set forth in the affidavit, upon which the attachment was founded. Reasons:
first, lien of attachment is good as against third persons, to the extent and
nature of the debt set forth in the affidavit; second, defeats debtor's remedy
on bond. Fairfield v. Baldwin, 12 Pick., 388. And the writing was inadmissible
under the counts. Because, if valid, it was in full force and unrescinded.
Eobertson v. Lynch, 18 John., 451; 1 Pick., 118. The legal title was in Gray,
by virtue of the assignment. The writing was not evidence, under any of the
specifications contained in this count. 3. The plaintiff is not prejudiced by
the decisions of the court, and it appearing from the whole record that
justice has been done, the judgment will not be reversed. 3 Scam., 485-6;
Sheehan v. Hampton, 8 Ala., 942; Cunningham v. Carpenter, 10 Ala., 109; Rakes
v. Pope, 7 Ala., 162; M'Kenzie v. Jackson, 4 Ala., 230; Evans v. Gordon, 8
Porter, 142; Proskey v. West, 8 S. & M., 718; Smith v. Elder, 7 S. & M., 507;
Elliot v. Fowler, 1 Littell, 201, 202; Clark v. Boyd, 6 Monroe, 295;
Williamson v. Bichardson, 6 ibid, 606-7; Sanders v. Johnson, 1 Bibb, 322;
Jones v. Handly, 3 Bibb, 225; Harman v. Kelly, 14 Ohio, 502; Andre v. Johnson,
6 Blackford, 375.

The demurrer being to the whole declaration jointly, the plaintiff, after
demurrer was sustained, having asked leave to amend, and having actually
amended second count, abandoned his whole declaration, and can not now assign
for error the decision of the court upon the demurrer. The issue of fact and
trial by jury waived the demurrer as to the fifth count.

O. C. Skinner, in reply: As to the manner of counting in the declaration, upon
the causes of action set forth in the affidavit, see Palmer v. Logan, 3 Scam.,
56. That if the instrument counted on shows that there was a specific sum of
money to be paid, it is good evidence to go to the jury upon the common
counts. 2 Greenleaf, secs. 113, 114, and note 7. The agreement shows a
distinct promise to pay, and it is presumable that the plaintiff has been
compelled to pay for the boiler, inasmuch as defendants did not pay. The
plaintiff paid a debt for defendants, a debt which they were liable to pay, in
order to relieve himself from his original liability to pay, and which
defendants bound themselves to pay in his stead. That plaintiff had a right to
offer the , instrument to the jury, as a step in his proof, and the court
ought not to have forbidden it, as plaintiff might afterwards supply any
omission and establish his case. Rogers v. Brent, 5 Gil., 587.

Caton, J. That the first four counts of this declaration are bad, we entertain
no doubt. The writing on which they are founded, is not one upon which alone
an action can be maintained under our statute; and we must, therefore, be
governed by the common law rules. It seems to be in the nature of an indemnity
against the debt, which the plaintiff owed for the boiler, and, in order to
maintain an action upon it, it was necessary to show that the writing was
given upon a sufficient consideration; and that the plaintiff had been
damnified by having had the debt to pay, which the defendants had promised to
discharge. The fifth is the common count, and its sufficiency is not
questioned. As there wore but five counts in the declaration, the demurrer
was, in fact, to the whole of it, and was improperly sustained to the fifth
count; and in this there was error. The defendant filed a general issue to all
of the declaration, except the first five counts, and there being but five
counts, of course the plea answered nothing, and could present no issue. As
there was no issue to the country formed, the trial which took place was a
nullity, and it is not necessary to examine its history. It may be true that
the demurrer was only designed to be applied, to the special counts, and that
the general issue was supposed to be filed to the common count. But however
probable this may be, we are not at liberty to assume that it was so, in
defiance of the record, which declares to the contrary.

The judgment of the circuit court is reversed, with costs, and the cause
remanded, with leave to both parties to amend their pleadings.

Judgment reversed.

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Cited—Reece v. Smith, 94 Ill., 362.

(1) See Lusk v. Cook, Breese (ed. 1885), 52 and note 2, collating authorities.

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar.
CHICAGO: CALLAGHAN & CO. 1886.