91 Ill. 127 | Ill. | 1878
delivered the opinion of the Court:
Eefusing leave to file the additional plea is assigned for error. Appellants’ counsel concede the general rule to be, that it is matter of discretion with the court to allow or refuse the application to file an additional plea, but claim that this case is to be excepted on account of the filing of the copy of the agreement on October 14, 1874.
It is a provision of the statute, that no person shall be permitted to deny on trial the execution of any instrument in writing, whether sealed or not, upon which any action may-have been brought, or which shall be pleaded or set up by way of defence or set-off, or is admissible under the pleadings when a copy is filed, unless the person so denying the same shall, if defendant, verify his plea by affidavit. E. S. 1874, p. 779, § 34. As the case stood before the copy of the agreement was filed, plaintiffs, on trial, would have been obliged to prove the execution of the agreement by the defendants. But after the filing of such copy, under the statute, plaintiffs were relieved from the necessity of making such proof, and defendants would not be permitted to deny on trial the execution of the agreement, unless they should have filed a plea of denial verified by affidavit. Thus the filing of the copy necessitated the filing of a further plea denying the execution of the instrument and verifying it under oath, in order to avail of the defence of the non-execution of the agreement. In such case there would be the right to file a further plea. And we incline to think that the filing of the copy of the agreement made such a change that defendants should- have been permitted to plead in respect to it, whether to deny the execution of the agreement, or to avail themselves fully of a set-off against it.
Until the filing of the copy, defendants presumptively did not know what was the particular causé of action, and when it was thus disclosed, there was a propriety in allowing the presentation of such defence as there might be against it.
The declaration had been amended, since the filing of the first two pleas, by inserting the name of another plaintiff*. The filing of the copy of the agreement, too, was analogous in effect to the amendment of the declaration, in the respect of the need of a plea to meet it; and the application of the rule of allowing the filing of additional pleas, where there has been a material amendment of the declaration, would seem to have been proper in this case. It was held in Griswold v. Shaw, 79 Ill. 449, that when the plaintiff amends his declaration in-a material respect, the defendant should be permitted to file additional pleas.
The plea offered was necessary in order to the recovery from the plaintiffs of the balance of damages claimed. It does not suffice that, as appellees’ counsel say, defendants might, under the plea of the general issue, recoup their damages to the extent of preventing any recovery by plaintiffs, and have brought a new suit for any excess. As the whole question of the damages would have been gone into in this suit, it would be fit that full recovery for them should there be had, and all litigation in respect to them ended. There should not have been imposed on defendants the unnecessary inconvenience of being turned around to a new action, and a re-investigation of the same matter, in order to recover the remaining portion of their damages. The law disfavors a multiplicity of suits.
It is objected that the plea was not verified, and that it was defective in form. It was not required by the court to be verified. Had the court made it the condition of filing the plea that it should have been verified, the question would be different. Specific objections were made to the filing of the plea, and the refusal of leave to file it was/ for specific reasons assigned.
The objections and reasons now urged are entirely different, not suggested in the court below. We think they should not be made here ■ for the first time, but be considered as having been waived, the plea having been objected to in the court below and not permitted to be filed for specific reasons other than those now urged. Kankakee and Illinois River Railroad Co. v. Chester, 62 Ill. 235; Wickenkamp v. Wickenkamp, 77 id. 92.
So far as appears from the record, there is reason to believe that injustice was done the defendants in refusing leave to file the plea, and the judgment will be reversed and the cause remanded.
Judgment reversed.
