110 Ill. 372 | Ill. | 1884
delivered the opinion of the Court:
This was an action of assumpsit, brought by Charles Moessinger, against Andrew Katz, to recover money paid by the plaintiff in satisfaction of a judgment rendered against Katz and Moessinger upon two certain promissory notes which the plaintiff had signed as surety for Katz. The declaration contained the common counts, to which the defendant pleaded in bar of the action, first, the general issue; second, a discharge in bankruptcy; and third, the Statute of Limitations of five years. To the second plea plaintiff replied a new promise after defendant was adjudicated a bankrupt, and to the third plea a replication was interposed alleging a promise of the defendant within five years. Issue was joined on these replications, and upon a trial before a jury the plaintiff recovered a judgment for the amount claimed, which was affirmed in the Appellate Court.
During the pendency of the cause the death of Moessinger was suggested, and his administratrix was substituted as a party plaintiff, and it is claimed that this was error, because the declaration, as originally filed, alleged that the suit was brought for the use of Schumacher. Before judgment, the declaration was amended, and the name of Schumacher was eliminated from the record, and so far as appears he had no interest whatever in the cause of action, and it was proper, upon the death of Moessinger, the plaintiff in the action, (the only person in whose name the action could be maintained,) to substitute his legal representative,—the administratrix of his estate.
It seems that when Moessinger paid the judgment he was advised not to discharge it of record, and under this advice the holder of the judgment made an assignment, in writing, to one Winthe, but delivered it to Moessinger, and it is contended that the legal title to the judgment stands in the assignee or his legal representative. Winthe paid nothing for the assignment, never had it in his possession, and had no interest in it or knowledge that the judgment was assigned to him. Under such circumstances, we do not think he had any interest whatever in the judgment. Moessinger being a surety on the notes upon which the judgment was founded, when he paid the judgment he had the right to keep it alive for his own benefit by an assignment to a third party, or regard it as paid and discharged, as might best subserve his own interest. He elected to treat the judgment as paid and discharged, and brought his action on this theory, and we do not regard the formal assignment as of any importance whatever.
From a close examination of the record it is apparent that the real bone of contention in the' case was, whether the promise to pay, made by Katz after he was adjudged a bankrupt, was a conditional promise, or an absolute, unconditional promise. This was a question of fact for the jury to determine from the evidence, and they found in favor of the plaintiff. That finding was affirmed in the Appellate Court, and under our statute the decision of the Appellate Court upon a question of this character is not reviewable here. If, then, the law involved in the case was properly given to the jury by the instructions of the court, the judgment will have to be affirmed.
On behalf of plaintiff the court gave two instructions. The first announces the well known rule that a discharge in bankruptcy will not avail as a defence against an indebtedness if the bankrupt, after he has-been adjudged a bankrupt, makes an unconditional promise to his former creditor to pay him. As to the second instruction, it is said “that it does not submit the issue of a new promise, but the repayment of notes.” We think the instruction, when closely examined, will be found to be free from objection. The fact that the instruction speaks of the payment of the notes upon which judgment was rendered, instead of the payment of the judgment, is a matter of no consequence. The real point at issue was, whether an unconditional promise had been made by the defendant, after he was adjudged a bankrupt, to pay the debt. Whether it was called a judgment, or the notes upon which the judgment was rendered, could not mislead the jury.
The court gave eight instructions on behalf of the defendant, but instruction No. 14 was refused, and this decision of the court is relied upon as error. The instruction, in substance, declares that a mere declaration of an intention to pay a debt discharged by bankrupt proceedings will not be sufficient to create a new obligation,—it must be an express, direct promise to pay. In instructions Nos. 2 and 4, given for defendant, the jury were, in clear and emphatic language, directed that the defendant could not be held liable except upon an unconditional new promise to pay. This, in substance, is -all that the refused instruction contains, and it has often been held not to be error to refuse to give duplicate • instructions. Indeed, upon reading the instructions given for defendant, the jury were so fully instructed in his behalf that there is no just ground for complaint, so far as instructions are concerned.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
