100 Ill. 82 | Ill. | 1881
delivered the opinion of the Court:
The principal question arising on this record is upon the third replication to the two pleas of set-off, whether it was a sufficient answer to the pleas, in avoidance of them. The pleas themselves had been previously adjudged to be sufficient by the court, on demurrer to them, and the only question was whether the replication sufficiently answered the pleas.
It is urged that the matter of the replication was an estoppel upon the defendant against setting up the matters of set-off alleged in ..the pleas. Were the judgment which was entered on the cognovit still subsisting, it is easily understood how there would be an estoppel; but as that judgment has been opened, and the defendant admitted to plead, it is not perceived what there is of estoppel in the case.
The judgment is to be looked upon as if it were not. The right given to plead is general, with no restriction whatever, and we do not see that the case stands differently in this respect from what it would if the suit were one in the form of an ordinary action upon the note by summons. We think the defendant is at liberty to plead any matter in bar which he might do in such action in the ordinary form, and the plea of set-off is a well recognized one of that character. Had an ordinary suit in the first place been brought upon the note, the warrant of attorney alone would have formed no bar to it, nor should it here; nor should the cognovit. That stands unacted upon, and is of no. force. The judgment that is to be rendered in the case will not be upon the cognovit, but for the amount, if any, found to be due upon the issues under the pleadings which have since been admitted to be made, entirely regardless of the cognovit.
Gross v. Weary, 90 Ill. 256, is cited by appellee’s counsel as an authority in support of this replication being an answer to the pleas, where it was said that the execution of the cognovit in that case was a waiver of the right to interpose a set-off for causes then known to be existing. That was a ease where the question was whether there was error in refusing to stay proceedings on a judgment confessed by cognovit until an issue of fact on the question of a set-off could be tried. What was there said was with reference to such a question, and must be so taken. In the exercise of its equitable jurisdiction to open a judgment by confession, the court might refuse to interfere with the judgment for the mere reason of the existence of a set-off, and say it would regard the execution of the cognovit as a waiver of the setting up of what it was sought to get the liberty to do, after the judgment had been confessed. It was a circumstance to influence the' equitable action of the court, and was not regarded as sufficient to call for its -exercise. But it is quite different when this equity power has been exercised, and the judgment opened, and the defendant admitted to plead without any restriction whatever as to the matter to be pleaded.
There then remains no equity jurisdiction to be exercised, and there is no more power in the court to dictate what defence may be pleaded than in any ordinary case at law. The expression referred to in the case cited' is, that the execution of the cognovit was a waiver of the right to interpose the set-off,— that is, where there was judgment confessed under it. But here there is no execution of the cognovit. The judgment under it has been opened, and the cognovit stands of no force,—the judgment to be rendered, as before said, will not be under ■ the cognovit for the amount confessed to be due, but for the amount to be found to be due, under the pleadings in the case.
We are of opinion the demurrer to this replication to the second and third pleas should have been sustained instead of overruled, and the judgment of the Appellate Court is reversed, and the cause remanded for further proceedings conformable to this opinion. , ",
Judgment reversed.
Subsequently, upon an application for a rehearing, the following additional opinion was filed:
In this ease the appellee assigned certain cross-errors upon the record which are not considered in the opinion which was filed herein, and the court is asked to grant a rehearing in order that said cross-errors may be passed upon by the court, as it might be of benefit to the appellee in a re-trial of the case. It is not necessary, for the purpose asked, to grant a rehearing, and without doing so, we will proceed now to a consideration of the cross-errors assigned. They are, that the court erred in sustaining demurrers to the fourth replications to the second and third pleas, being the pleas of set-off in the ease, and to the fifth replication to the third plea.
The fourth replication to the third plea, the special plea of set-off, sets out, substantially, that after the arbitration and award stated in that plea had been made,- Borchsenius filed the partnership accounts between him and Frederick Irgens, deceased, being the same included" in the arbitrationand award in the county court of La Salle county as a claim against the estate of said Irgens; that said claim came up for hearing in said court and that on said hearing Borchsenius dismissed his said claim, and took judgment for another item of account for funeral expenses paid, for §59.49, and never again, within the time allowed him by the statute for filing claims in the county court against said estate, to-wit, two years, filed his said partnership claim in said court, and has never prosecuted any appeal from the order of said county court, so that Borchsenius is barred from setting up said claim, or said arbitration and award, as a set-off in this case against the note in suit.
There was no adjudication of the county court upon this claim, as it had been withdrawn. The fact of any recourse against the estate of Frederick Irgens for this claim having been barred from failure to re-file the same within two years, is no answer to this plea of set-off, which sets up the promise of Anna Irgens to pay to Borchsenius the specific sum of §486.25, the amount of the partnership indebtedness Lorn Frederick Irgens to Borchsenius which was found by the award, in consideration of Borchsenius surrendering up to said Anna, or to the administrator for her benefit, the policy of life insurance which Borchsenius held as security for the payment to him of this partnership indebtedness. It was her own personal promise to pay a specified sum of money upon which she was liable, although, by subsequent failure to present the claim in time against the estate of Frederick Irgens, Borchsenius lost all remedy for the claim against that estate. Plaintiff’s promise was without reference to, and independent of, the preservation of such remedy against that estate.
The fourth replication to the second plea, the general plea of set-off, is substantially the same as said fourth replication to the third plea.
The fifth replication to the third plea was the Statute of Frauds, that plaintiff’s promise was to pay the debt of another, and was not in writing, and so not binding under that statute.
In Wilson v. Bevans, 58 Ill. 232, this court held, that where a purchaser of personal property agreed, verbally, in consideration of the purchase, to "pay certain debts of his •vendor due to a third person, the promise was not a collateral one, but an original promise, and not within the Statute of Frauds. To similar effect was Meyer v. Hartman, 72 Ill. 442.
In Clifford v. Luhring, 69 Ill. 401, it was recognized to be the doctrine that where the leading object of the undertaking is to promote some interest of the party’s own, his promise to pay is not within the Statute of Frauds, although its effect is to release or suspend the debt of another. To like effect see Emerson v. Slater, 22 How. 43.
In Curtis v. Brown, 5 Cush. 491, the court say: “Where the plaintiff, in consideration of the promise, has relinquished some lien, benefit or advantage for securing or recovering his debt, and where, by means of such relinquishment, the same interest or advantage has inured to the benefit of the defendant,—in such cases, although the result is that the payment of the debt of the third person is effected, it is so incidentally and indirectly, and the substance of the contract is the purchase by the defendant of the plaintiff of the lien, right or benefit in question. * * * But where the original debt still subsists, and where the plaintiff has relinquished no interest or advantage 'which has inured to the benefit of the defendant, it is not an original contract, but a contract to pay another’s debt, and must be in writing. ”
By the showing of this special plea of set-off, Borchsenius held the policy of insurance therein named in pledge, as a security for the payment of Frederick Irgens’ partnership indebtedness to him, and in consideration of his surrender of the policy the amount of said indebtedness was determined by an award of arbitrators, who had been chosen for such purpose by said Borchsenius and Anna Irgens,—the amount found by the award being $486.25,—and in consideration of such surrender said Anna promised to pay to Borchsenius said sum; that Borchsenius accordingly surrendered said policy to the administrator of Frederick Irgens’ estate, who collected the money due upon it, $1000, and paid the same over to said Anna, the widow of said Frederick Irgens, upon her specific allowance, as such widow, from his estate, and that said policy of insurance was the only resource for the obtaining of the payment of such specific allowance. It thus appears, that the surrender by Borchsenius of this policy of insurance, which he held as security for the payment of Frederick Irgens’ indebtedness to him, inured directly to the benefit of Anna Irgens, in enabling her to obtain therefrom the payment of her specific allowance.
We are of opinion that the promise here comes within the principle of the above decisions, and that although in form a promise to pay the debt of another, it is to be regarded as an original contract, and is not within the Statute of Frauds.
It is insisted that this special plea of set-off was bad, and that the demurrer to the replication should have been carried back and sustained to the plea. On a previous appeal to the Appellate Court, this plea of set-off had been adjudged to be a good plea. We concur with that court in holding the plea to be good, and are satisfied with the reasons given for such ruling in the opinion of that court, to be found in 3 Bradw. Rep. 599, Borchsenius v. Irgens.
We find that there was no error in sustaining the demurrers to the fourth replications to the second and third pleas, and to the fifth replication to the third plea. A rehearing is denied.
Rehearing denied.