76 Ill. App. 637 | Ill. App. Ct. | 1898
after making the foregoing statement, delivered the opinion of ¡the court.
There is no question but that the overdraft was made as claimed by appellee. It is, however, contended by appellant, that the amended declaration does not state a partnership liability. Appellee thereby “ complains of Nathaniel P. Richman and Joseph B. Blanchard, surviving partners of Clinton R. Palmer, lately trading under the firm name of Palmer, Richman & Co., defendants in this suit, summoned, etc., of a plea of trespass on the case on promises.” The declaration concludes as follows:
“ Nevertheless, the said defendants, and the said Clinton E. Palmer, in the lifetime of the said Clinton E. Palmer, and the defendants, since the death of the said Clinton E. Palmer, not regarding the several promises so by them made as aforesaid, but contriving to deceive and defraud the said plaintiff, have not, nor has either of them, as yet, paid the several sums of money, or any or either of them, or any part thereof, to the said plaintiff, although often requested so to do, but to pay the same or any part thereof to the said plaintiff, the said defendants and the said Clinton E. Palmer, in the lifetime of the said Clinton E. Palmer, wholly refused, and the said defendants have ever since the death of the said Clinton E. Palmer, hitherto wholly refused and still do refuse so to do.”
Indorsed upon said amended declaration is an affidavit, stating that the demand of appellant is for money due, “an itemized statement of which is hereto attached and made a part hereof.” That statement commences as follows:
“ Palmer, Eichman & Co., a co-partnership, composed of Clinton E. Palmer, Nathaniel P. Eichman and Joseph B. Blanchard, engaged in the live stock commission business at Sbuth Omaha, Nebraska.
In account with The South Omaha National Bank.”
The first item in said statement is “Balance to credit, Palmer, Eichman & Co.” In several places in the statement it appears that transactions forming items thereof were for and by that firm.
It is clear that appellant was not misled or taken by surprise. In one of the instructions asked by him, this condition is stated, viz.:
“ If you believe from the evidence that the defendant, Nathaniel P. Eichman, was not in partnership with the defendants, Joseph B. Blanchard and Clinton E. Palmer, as the plaintiff’s declaration alleged.”
There is no specific mention of this point either in the motion for a new trial in the court below, or in the assignment of errors in this court.
The whole purpose and office of a declaration is to advise a defendant in due form of law, as to' the character and amount of plaintiff’s claim. This was done by this declaration. To have put in issue the question of a partnership, as distinguished from a joint liability, the defendant should have pleaded in abatement.
The evidence is conclusive that appellant is liable for the amount due appellee. The other party or parties, as to whom appellant claims there was no partnership liability, are not before the court denying such liability. Where a defense is purely technical and is not sustained by any equity, the technical defense must be clear and absolute.
The deposition of Harry C. Bostwick, cashier of appellee, was read upon the trial. In this deposition the witness was asked if there was any arrangement between the bank and Palmer, Richman & Co. with respect to overdrafts and the payment of interest thereon, and if so, what it was. He replied : “ They were allowed overdrafts occasionally, and it was agreed that they should pay ten per cent interest per annum.” Ho objection thereto was made at the time of taking the deposition. Appellant was not present at the time. This deposition was filed in court, June 13, 1894. The case was not tried until March 23, 1897. Ho objection was made to said deposition, or any part thereof, nor any motion made to strike out or suppress the same or any part thereof prior to the time of trial. At the trial appellant moved to strike out the answer above quoted as being incompetent, which motion was denied.
There was no error in denying this motion. The deposition had been on file nearly three years. “ Objection which might be obviated by .issuing a new commission and re-examining the witness can not be heard after the case is called for trial.” Kassing v. Mortimer, 80 Ill. 603; B. S. Green Co. v. Smith, 52 Ill. App. 159; Town of Sheldon v. Burry, 39 Ill. App. 157.
If technical rules be strictly applied, perhaps this appeal should be dismissed. The record shows that after verdict “the defendants enter herein their motion for a new trial; ” that judgment was entered against “ the defendants, Hathaniel P. Rich man and Joseph B. Blanchard, as Palmer, Richman & Co.; ” and also that “ the defendants having entered their exceptions herein prayed an appeal, * * * which is allowed upon said defendants filing herein their appeal bond,” etc. The appeal bond is not signed by the defendant Blanchard, nor for him, or in his behalf, and he is not prosecuting this appeal.
At a succeeding term an order was entered by an agreement as to the spelling of the name of appellant, and it may possibly have been intended by that order to make the judgment stand as against appellant only, although that is doubtful. But there is no change in the order as to the appeal or the appeal bond. There is no motion to dismiss the appeal and we therefore prefer to affirm the judgment.
The judgment of the Superior Court is affirmed.