American Trust & Savings Bank v. Lantry Contracting Co. , 257 Ill. 271 ( 1913 )

Mr. Chibe Justice Dunn

delivered the opinion of the court:

By a writ of certiorari there has been brought up for review the record of the Appellate Court for the First District, which court reversed a judgment of the municipal court of Chicago in favor of the defendant, the Lantry Contracting Company, and rendered judgment for plaintiff, the American Trust and Savings Bank, trustee in bankruptcy of the Contractors’ Supply and Equipment Company, for $4517.53 and costs.

The suit was an attachment brought by plaintiff against defendant as drawer of a bill of exchange for $3817.69, and was defended on the ground that the debt evidenced by the bill' had been paid before the bill was drawn and that the payee fraudulently concealed such payment and failed to disclose it to the drawer. There was also a plea of set-off. The Appellate Court in its judgment recited a special finding of facts, as follows: “We find as ultimate facts that appellee is indebted to appellant in the sum of $4517.53 for principal and interest upon the bill of exchange sued on; that the Atchison, Topeka and Santa Fe Railway Company, as garnishee herein, is indebted to appellee in the sum of $6000; that appellant was not guilty of any fraud whereby appellee was induced to enter into the compromise agreement wherein the bill of exchange sued on was given by appellee, and that said compromise agreement constitutes a good and sufficient consideration for said bill of exchange.” The first finding and the last are conclusions of law and the finding in regard to the garnishee is immaterial to the merits.

The question whether the defendant in error was guilty of any fraud whereby the plaintiff in error was induced to enter into the compromise agreement wherein the bill of exchange sued on was given by the plaintiff in error was one of fact, on which the parties were entitled to a trial by jury. The plaintiff in error had a right to contest before a jury its liability on the bill of exchange on the ground that it was fraudulently procured. By the judgment of the Appellate Court the plaintiff in error was deprived of this right. The recital of facts justified the reversal of the judgment but not the final determination of the issues and the entry of judgment against the plaintiff in error. City of Spring Valley v. Spring Valley Coal Co. 173 Ill. 497.

The judgment of the Appellate Court for $4517.53 and costs is reversed and the cause is remanded to that court, with directions to remand it to the municipal court for another tnal.

Reversed and remanded, with directions.