O'Donnell v. Brink's Express Co. , 95 Ill. App. 411 ( 1901 )

Mr. Justice Sears

delivered the opinion of the court.

The evidence presented upon this trial is substantially the same as upon the former trial, judgment in which was reversed upon the appeal in Brink’s Ex. Co. v. O’Donnell, 88 Ill. App. 459. It was shown upon this trial that Henry A. Foster, Esq., the administrator of the estate of Bridget Brennan, deceased, with whom the settlement had been made, had received a check for $600 from appellee, which check was made payable to Mr. Foster as administrator.

The only assignments of error going to the substance of the case, which are assigned by appellant, were fully considered and disposed of upon the former appeal. It is now assigned as error in procedure that the Circuit Court permitted the appellee to withdraw certain pleas. We are of opinion that there was no error in this ruling, and it could in no event be prejudicial to the rights of appellant, for the settlement could be as well availed of under the general issue as under the special pleas. City v. Babcock, 143 Ill. 358.

The validity and the conclusive effect of the settlement with Mr. Foster, as administrator, is considered and adjudicated by the decision upon the former appeal.

The appellee assigns cross-errors, in that the Circuit Court permitted a recovery of the amount agreed upon in the settlement, and refused to instruct the jury to find it not guilty. There was no error in this-ruling of the learned trial court. The agreement of settlement provided for the entry of a judgment for the amount of $600. There has been no payment by appellee of this amount to the estate of Bridget Brennan. The mere fact that Mr. Foster still holds a check, made payable to himself as administrator, is of no consequence, for he is no longer the administrator, and the check can not be collected by him. At the trial the check was in possession of appellee and proffered in evidence by it.

The recovery b)'- the present administrator of the amount which was agreed upon as a settlement of the claim, is right and should be affirmed. The judgment is affirmed.