American Splane Co. v. Barber , 91 Ill. App. 359 ( 1900 )

Mr. Presiding Justice Shepard

delivered the opinion of the court.

The declaration in assumpsit counted specially on the contract, and contained, also, the common counts. The trial was by the court and a jury, and a judgment’ for $1,097.92 was rendered upon a verdict for that amount.

It will be observed that the contract was for a period of one year, terminating JVIay 26, 1897. The suit was begun August 26, 1897. It will also be noticed that the contract is sealed.

Appellant’s preliminary point is that appellee can not maintain an action in assumpsit on a contract under seal to which she is not a party.

Assuming, as appellant does, that appellee is not a party to the contract, and also, that the contract is not only under seal, but is of a character requiring a seal, the rule at common law, and formerly in this State, would not have permitted her to maintain a suit upon it even though the contract was for her benefit. Moore v. House, 64 Ill. 162, and subsequent cases.

But since that case was decided the common law rule has been changed, on that subject, by section 19 of the practice act, and it is now immaterial, for the purpose of bringing the suit, whether the contract is under seal or not. Webster v. Fleming, 178 Ill. 140.

It needs, we think, only that the contract be read in order to show that appellee was benefited by it, and intended so to be.

It was agreed by E. A. Barber that his wife, the appellee, should pay appellant $1,000 on account of the stock of goods to be carried in the business, and that at the expiration of the contract appellant should repay to her the sum so paid by her. She agreed to the contract and invested the money on those conditions.

Whether or not, as discussed, the contract became terminated before the expiration of the year expressly provided for its ending, by reason of any default or breaches on the part of either the appellant or E. A. Barber, does not seem to be material in connection with the right of appellee to recover back her money, in a suit not begun by her until some months after the year had expired, and the contract by its terms had ended. She seems to have performed everything required to be done by her. But appellant says there ivas no evidence to support the third count of the declaration wherein the expiration of the contract by its own terms is alleged. This seems to us to be a misapprehension. The contract was offered and received in evidence. On its face that paper expressly provides for the beginning of the contract on May 26, 1896, and its ending on May 26, 1897. The receipt signed by appellant for the $1,000 furnished by appellee “on account of contract” was also offered and received in evidence and bears the same date as the contract. It would seem to be plain, almost beyond argument, that the purpose of the contract was, as between the parties to this suit, that appellee should furnish appellant $1,000, to aid in carrying on the business for the term of one year, and at the expiration of that period should receive it back. She so furnished the money and the time having run, it not being repaid to her, she brought suit for it.

It is also objected that incompetent evidence was admitted to the jury, and that a new trial should have been granted because of facts set up in an affidavit read on the hearing of the motion for a new trial.

We have examined both of these points. Nothing but familiar law is involved in them, and we decline to incumber our opinion with a discussion of them.

The judgment is right and it is affirmed.