211 Ill. App. 596 | Ill. App. Ct. | 1918
delivered the opinion of the court.
Under date of November 8,1904, George Mathis and August Mathis executed and delivered three notes, payable to the order of Abe Miller, each for $200, due 2 years after date, with interest at 6 per cent, per annum payable annually. Miller assigned these notes specially to Clinton F. Luther and he brought this suit against the signers and filed a count on each note, and the common counts. An affidavit of claim was attached. Defendants filed seven pleas. The first was the general issue, and the second to the seventh were special pleas, in form pleas of set-off. They were verified. Recitals in the bill of exceptions at the time of the trial show that a demurrer to said special pleas had been filed June 1, 1914, and had been overruled January 13, 1916, but said demurrer and order are not in the record before us (though the abstract recites that they are), and they were not called for by .the praecipe for this record. It is disputed whether said order was by the judge who afterwards tried the cause, and in the absence of the order from the record we cannot determine that. Plaintiff filed replications to each of said special pleas. Amended replications were filed to each of said special pleas and issues of fact were joined thereon. A first jury trial was interrupted by a continuance granted plaintiff. During the second jury trial the court set aside the former order overruling a demurrer to the special pleas, and sustained the demurrer to said special pleas; denied a motion by defendants for a postponement or a continuance and directed a verdict for plaintiff for $800, which was the amount due on the notes. Thereafter a motion for a new trial was denied, plaintiff had judgment, and defendants appealed.
The power and duty of a court to set aside an erroneous ruling on pleadings made either by that or another judge, and to correct the error, is well established in this State. Fort Dearborn Lodge v. Klein, 115 Ill. 177; Dowie v. Priddle, 216 Ill. 553, and other cases. These cases further indicate that the party against whom the ruling is so made should be given a reasonable opportunity to determine whether to stand by the pleading or to plead over. In this case the cause had been at issue for a long while, and when the court during the trial sustained the demurrer to the pleas, counsel for defendants asked the court either to temporarily postpone the trial or to continue the cause, and showed by his affidavit that the case involved a long course of dealing between the parties, and that his client, G-eorge Mathis, had at his home, 40 miles from the courthouse, many papers bearing upon those dealings, and that counsel desired to examine them before determining what course to pursue. A postponement for even a day would have been within the terms of his request, and we think it should have been granted. Still, the refusal of that motion was not reversible error if defendants were not harmed thereby. We conclude they were harmed in' two respects. The face of the special pleas showed that the statute of limitations had run against the causes of action stated therein, when the court virtually struck out plaintiff’s replications and sustained the old demurrer to the special pleas. Also, the affidavit filed by defendants’ counsel expressly stated that the statute of limitations had run. Shortly after this action in the lower court, the Supreme Court in Pease v. Rockford City Traction Co., 279 Ill. 513, held that it was an abuse of discretion to permit a party to withdraw a pleading and to demur to the pleading of the opposite party after the expiration of the limitation, even though said demurrer was well founded in law. Under that rule it was error to take this action after the causes of action set up in defendants ’ special pleas were barred by the statute of limitations. But defendants were thereby injured further by being deprived of the admissions of the special replications. The declaration did not aver that plaintiff was a purchaser of the notes before maturity. Bach special plea alleged, in substance, that these notes were indorsed by Miller to Luther without consideration and that Miller is still the real owner of the notes and of the rights of recovery on the notes, and that defendant, August Mathis, received no consideration for the notes and was a mere surety, and the set-offs were claims of the principal debtor, George Mathis, against Miller. The special replications to these special pleas did not deny any of the allegations we have above stated. They were therefore confessed by the replications. In Simmons v. Jenkins, 76 Ill. 479, it is stated as a fundamental rale of common-law pleading that a fact asserted on one side and not denied on the other is admitted. Heard’s Civil Pleading, 162. These admissions by silence in the pleadings would not be binding if suits were afterwards brought upon the causes of action stated in the special pleas.
A set-off is a counter demand which defendant holds against plaintiff, arising out of a transaction extrinsic of plaintiff’s cause of action, and unliquidated damages may not be the subject of a set-off. Recoupment is in the nature of a cross-action, where defendant alleges that he has been injured by a breach by plaintiff of another part of the contract on which the action is founded, and unliquidated damages may be so recouped. Set-off permits not only the defeat of plaintiff’s cause of action, but a recovery against plaintiff for a further sum. Recoupment can only extinguish the plaintiff’s cause of action. 34 Cyc. 623-625. A set-off must be pleaded (except where a statute permits a notice in lieu of a plea), while a recoupment need not be specially pleaded. 34 Cyc. 643. The implication, however, is that it may be specially pleaded. A set-off due a principal is also available to his surety. Himrod v. Baugh, 85 Ill. 435; Gilliam v. Coon, 10 Ill. App. 43; Hayes v. Cooper, 14 Ill. App. 490; Graff v. Kahn, 18 Ill. App. 485; Wieland v. Oberne, 20 Ill. App. 118; Ronehel v. Lofquist, 46 Ill. App. 442; Marcy v. Whallon, 115 Ill. App. 435. The consent of the principal to such pleading by the surety is necessary and is shown here by their joining in the pleas.
The second plea is a straight plea of set-off for $178.50, owing by Miller to George Mathis for labor and material. This is not unliquidated damages, under East v. Crow, 70 Ill. 91, which has been followed by at least three of the Appellate Courts of this State in D. Heenan Mercantile Co. v. Welter, 144 Ill. App. 279; Tartt v. Ramey, 158 Ill. App. 468; Ideal Coated Paper Co. v. Samuel Cupples Envelope Co., 169 Ill. App. 484, and in other cases. Said second plea is defective in its beginning and conclusion, in that it professes to answer and prays judgment of the entire cause of action of plaintiff, whereas it should have been so framed as to answer only a part thereof. Having joined issue on this plea in that form, plaintiff ought not now to be permitted to take advantage of that merely formal defect. The fourth plea is for a mere money demand of $75, and subject only to said formal defects. The fifth plea was a good plea of recoupment, sufficient to defeat the plaintiff’s entire demand, if proven. It is alleged that George Mathis bought a stock of merchandise and the good will in connection therewith from Miller, and that the notes sued on are a part of the consideration therefor; that another part of said contract was that Miller would not enter into business for 10 years in the village where said merchandise was, and that within that time he did enter into competition with George Mathis in said merchandise business, and thereby George Mathis was injured to the extent of $2,000. True, defendant August Mathis could have no further benefit of this violation by Miller of the contract than to defeat the notes, and George Mathis also could not recover beyond the face of the notes, because Luther would not be liable to defendant or defendants for more than sufficient to defeat the notes. Yet, to the extent of defeating the notes, the plea was good. We are of opinion that the third and sixth pleas do not state a defense. They allege that George Mathis paid Miller more rent for a certain store than it was reasonably worth, but show no fact that would authorize him to recover back part of the rent paid. The seventh plea seeks to set off work and labor in the sum of $500, and is therefore good to defeat, partially, plaintiff’s cause of action, except for the same imperfect form of the beginning and conclusion of the plea.
The judgment is therefore reversed and the cause remanded with directions to vacate said order and to restore the special pleas and the replications thereto, except as to the third and sixth pleas, and with leave to defendants to amend said third and sixth pleas if they desire.
Reversed and remanded with directions.