Hamill v. Watts , 1913 Ill. App. LEXIS 765 ( 1913 )

Mr. Presiding Justice Clark

delivered the opinion of the court.

Judgment was rendered in this case in favor of the plaintiff (defendant in error) and against the defendant (plaintiff in error) on an alleged assignment of wage claims.

The plaintiff’s statement recites that his claim is based on sundry labor claims, being' for money due from the defendant to various persons for work and labor in and about the operation of a coal mine at Mt. Vernon, Illinois; that the defendant was operating the mine under the name of Mt. Vernon Coal Company, and while so operating it became indebted to sundry persons named in the statement; that the claims were purchased from the several holders thereof at the request of defendant by one H. D. Wagner; that Wagner assigned the claims to the plaintiff for a valuable consideration, and that the plaintiff is the actual bona fide owner of the same.

The affidavit of defense filed recited that none of the persons mentioned in the amended statement of claim had ever had any claims against the defendant for work and labor; that the mine at Mt. Vernon was owned by a corporation and not by the defendant; that the defendant is in no way whatsoever, and never was, indebted to any of the said persons; that the defendant did not operate the coal mine under the name of the Mt. Vernon coal company and did not become indebted to the said persons in the amounts claimed in the statement of claim or in any sums whatsoever; that the defendant never requested Wagner or any other person to purchase from the holders these said claims at their face value or at any other sum. The affidavit has further recitals as to the defendant having agreed to sell his interest in the capital stock of the corporation owning the mine to one Patton, and as a part of the purchase price of said stock in said mine said Patton agreed to pay all claims due to any laborers from said corporation; that the defendant never had any dealings of any kind with the plaintiff, and never had any knowledge or notice of the alleged assignments of any claim against the defendant.

There' was a trial before the court without a jury, and a finding in favor of the plaintiff for the sum of $973 and judgment rendered upon such finding.

The points relied upon by defendant for reversal, as shown by the brief, are, that the record does not show that the employes whose claims were assigned believed or had knowledge that they were working for any one other than the Boland Coal Mining Company; or that they had been employed by the defendant or thought to hold him liable for their wages, or that said employes ever made a claim against the defendant; that the record affirmatively shows that one Pollock knew that the mine had been sold to the Boland Company, arid that notwithstanding that the judgment included a wage claim of Pollock’s; that the assignments were not proved by competent evidence, and that it was not necessary to show that the charter of the Boland Company had not been recorded.

Rule 17 of the Municipal Court provides that the defendant shall file an affidavit sworn to by himself, his agent or attorney, stating that he verily believes that he has a good defense to the suit upon the merits to the whole or a portion of the plaintiff’s demand, and specifying the nature of such defense in such a manner as reasonably to inform the plaintiff of the defense which will be interposed at the trial, and evidence “of only such defenses as are set out in said affidavit shall be admitted upon the trial.” Rule 19 provides that “every allegation of fact in any statement of claim or of counter-claim of set-off if not denied specifically or by necessary implication in the affidavit of defense filed in reply by the opposite party, shall be taken to be admitted except as against an infant or lunatic.” See also Rule 20 and Kadison v. Fortune Bros. Brewing Co., 163 Ill. App. 276.

Section 18 of the Practice Act, providing that the assignee and equitable and bona fide owner of any chose in action not negotiable may sue thereon in his own name, has been made to apply to cases in the Municipal Court by rule'23.

It is to be noted that the affidavit of defense does not deny the fact alleged in the statement that Wagner assigned the claims to the plaintiff for a valuable consideration. It does deny that the defendant operated the coal mine under the name of the Mt. Vernon Coal Company, and further that the persons mentioned in the amended statement of claim had any claims against the defendant for work and labor, and alleges that he did not become indebted to them.

At the trial a bookkeeper who had been employed at the mine gave evidence which, in' our opinion, tended strongly to show that the defendant was operating the coal mine under the name of the Mt. Vernon Coal Company (that he did so operate at one time is admitted by defendant), and the dispute between the parties seems to be based largely upon the question as to whether or not the Boland Coal Mining Company had been formed and the property turned over to that company, and as to whether at the time the labor was performed that company conducted the operations of the mine. It appeared that the bookkeeper kept the time of the men and participated in the making of the pay checks. The affidavit of defense does not challenge the plaintiff’s claim, made in his statement, that Wagner purchased them from the several holders and owners thereof, but merely denies that the defendant requested him so to purchase them. Pay checks introduced in evidence bear upon them the words “Mt. Vernon Coal Company,” and, as heretofore stated, we think the evidence was sufficient to warrant the conclusion that it was under this name the defendant was doing business. We are not convinced that the Roland Coal Mining Company, as a corporation organized under the laws of Illinois, was operating the property at the time the labor was performed. The bookkeeper testified that the “only thing” he had heard about the business of the mine belonging to a corporation known of that name “was just a rumor;” that he had never received any official notice of it; that afterwards the superintendent told him it was then a corporation, and that he guessed that this was told him about a week after the time it was supposed to have been incorporated; that there was no change in the bookkeeping, and that the letterheads were changed a week or possibly two weeks after the time “the place was supposed to have been incorporated.” The bookkeeper seems to have had charge of the bank account, and testified that when a large collection was made it would be put in the bank in the name of the Mt. Vernon Coal Mining Company.

The defendant testified on cross-examination (not abstracted) that he was the ‘6record owner” of the mine prior to the incorporation of the Boland Coal Mining Company. Letters written by him to his bookkeeper tended also to indicate that he regarded himself as the owner at-the time the labor claims originated.

The record does not show that a certificate from the Secretary of State of the complete organization of the corporation had been recorded in the office of the Becorder of Deeds of the county where the principal office of the company was located. It was said in the case of Loverin v. McLaughlin, 161 Ill. 417 (425), that such a corporation has no right to transact business.

There was introduced in evidence a special warranty deed by the defendant and wife conveying the title to certain lands in the city of Mt. Vernon to the Boland Coal Mining Company, which appears to have been properly acknowledged and duly recorded.

Notwithstanding this evidence, we are unable to say that the finding of the court that the mine was being operated by the defendant and that the laborers whose claims were assigned were in his employ is erroneous. The judgment will be affirmed.

Affirmed.