Dunker v. Schlotfeldt , 49 Ill. App. 652 ( 1893 )

Opinion of the Court,

Harkek, P. J.

This is an action of assumpsit by Mary Dunker, as executrix of the last will, etc., of Mary Schlotfeldt, deceased, against appellee. There are three counts in the declaration. First. A special count upon a promissory note executed by the defendant and J. H. Schlotfeldt, to one Henry Empke, and alleged to have been assigned by Empke to Mary Schlotfeldt. Second. A common count for money had and received. Third. A common count for money paid out for the defendant’s use at his request. A copy of the note sued on was filed, but there was no copy of an account filed.

Four pleas were filed. First. The general issue. Second. Ten years statute of limitation. Third. Five years statute of limitation. Fourth. A plea denying the assignment of the note.

Upon the trial, the plaintiff offered in evidence the following note, with indorsements:

“ $400. Molihe, Ill., May 4, 1876.

One year after date, for value received, I promise to pay to the order of Henry Empke, the sum of four hundred dollars, with interest at ten per cent per annum, at the Mo-line Kational Bank.

J ames F. Schlotfeldt.

J. H. Schlotfeldt.”

(Indorsement on back of note.)

“ Pay interest for 1877. Interest pay for the year 1878 and 1879. Interest pay for 1880 and 1881. Interest for 1882, 1883 and 1884, paid. The interest is pay up to May 4th, 1886. Sept. 14th, 1887. Int. on this note, $24. Paid to May 1th, 1887. May 3rd, 1888, rec’d on the within note, $21 Int.

Received of Mrs. Mary Schlotfeldt, four hundred and twelve dollars, in full payment of this note.

Moline, ISTov. 21, 1838. Hesev Empke.

May 9th, 1889, one year interest paid, $24. One year’s Int. paid, May 19th, 1890, $24. Paid May 19th, 1890, $21.”

The court sustained an objection to the note.

The plaintiff then sought to establish her case under the common counts, and offered to produce Henry Empke as a witness for that purpose, but the defendant objected to the introduction of evidence under the common counts and the court sustained the objection.

The note was not admissible under the special count, for the reason that it did not appear to have been assigned by Empke, as alleged. The indorsements appearing on the back of the note were evidently made by an uneducated person. If, as a matter of fact, Empke sold the note to Mary Schlotfeldt, and the indorsement appealing as a receipt was intended by him as an assignment, there could be no impropriety in his correcting it. The indorsement could be treated as an indorsement in blank, and corrected or filled out upon the trial. Ho offer to do so was made, however, and the court correctly sustained an objection to the note.

We can not understand why the court refused to allow the plaintiff to introduce evidence to establish her case under the common counts. She may have been able to do so independent of the note. If it were for the reason, as suggested by counsel in his brief, that no statement of the account sued on was filed with the declaration, the objection came too late. Where the plaintiff has failed to file a statement of account sued on, the defendant may have the cause continued for the term, or obtain a rule upon the plaintiff to file such statement. If he does not elect to do so, however, and pleads in bar, he can not raise the objection upon the trial. McCarthy v. Mooney, 41 Ill. 300.

For this error of the court the judgment must be reversed and the cause remanded.