191 Ill. 181 | Ill. | 1901
delivered the opinion of the court:
It is insisted as a. ground of reversal here that the bond sued on was never delivered and accepted. This was a controverted question of fact at the trial upon which the evidence was conflicting, and is settled adversely to the appellant by the judgment of affirmance in the Appellate Court.
A second ground of reversal insisted upon is, that by its rulings upon the foregoing proposition of law and the admission of the evidence objected to the trial court erroneously held that “by the word ‘claim’ the parties meant a valid claim for an actual indebtedness.” It may be conceded that the word “claim” generally has a different meaning from the word “indebtedness,” but we entertain no doubt that as used in this bond, in connection with the deed of assignment, the parties used it in the sense of an indebtedness due the American Fire Extinguisher Company from the several parties named. Both in the bond and deed of assignment the language is: “The claim of the American Fire Extinguisher Company, etc., for moneys due and to become due shortly for sprinkler equipment and appliances, said claim being not less than $1790,” etc. A claim for money due and to become due for property sold, of not less than a certain amount, fairly construed means a claim of indebtedness due and to become due for the property sold, and by the condition of the bond here sued on it was agreed that it should only be void and of no effect provided it should appear “that the said claims are not less than the amounts so set forth as aforesaid.” The purpose of the American Fire Extinguisher Company in assigning the claims to the Crane Company was to satisfy and extinguish an indebtedness due from the former to the latter. To say that the parties intended by the deed of assignment and bond mere claims, and not an existing indebtedness, seems to us unreasonable and to make the whole transaction but an idle ceremony. We think the circuit court properly refused to hold the sixth proposition of law, and that it did not err in admitting the evidence objected to by defendant.
An attempt is made to raise a question of variance between the allegations of the declaration and the proofs, but no such question was properly raised.upon the trial and therefore is not open to review here.
We find no reversible error in this record. .The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
