Bacon v. Reichelt ( 1916 )

Mr. Justice McGoorty

delivered the opinion of the court.

We are of the opinion that the verdict in this case is against the manifest weight of the evidence. Following defendant’s confession to plaintiff that he wrongfully took $640 of plaintiff’s money, defendant was convicted in the Criminal Court of Cook county of embezzling money from plaintiff, and sentenced to the penitentiary. Defendant’s testimony that plaintiff increased defendant’s salary from $1,800 to $5,000 a year is unsupported by any other direct evidence. Although defendant testified that owing to plaintiff’s poor financial condition he waited for several years before demanding or receiving such additional compensation, the evidence does not show such improvement in plaintiff’s financial condition as would even tend to explain why defendant was enabled to rightfully obtain from plaintiff $24,329.60 within a period of less than two years, commencing May 5, 1910.

It seems highly improbable that plaintiff, whose daily banking transactions varied from $1,000 to $200,000 a day, would falsify his books for the sole purpose of concealing from his creditors an added expense of $3,000 a year. There is no evidence in this record that Lamson Brothers were ever deceived by any entry made in plaintiff’s books, or denied access to same. It has not been shown by any evidence how plaintiff’s alleged representation to Lamson Brothers, that plaintiff owed the latter $70,000 less than the amount actually owing, deceived or could have deceived said firm. So far as the evidence discloses, it may be reasonably inferred that only plaintiff was deceived by defendant’s false entries in plaintiff’s books. Considering the further fact that defendant had been duly adjudged guilty of embezzling plaintiff’s money, that most of the money taken by him was during plaintiff’s absence in some distant city, that the checks upon which defendant obtained such moneys are the only checks which are missing, it is evident that the verdict is against the manifest weight of the evidence.

It is also contended that the court erred in instructing the jury as follows:

“The court instructs the jury that if they find from the evidence herein that the conveyance or conveyances to John W. Barker in question were made for the sole purpose of securing said Barker upon his obligation as a bondsman for said defendant Reichelt, then the court instructs the jury that such conveyance or conveyances cannot be considered by them as evidence in support of the plaintiff’s case upon the attachment issue herein, even though you may believe from the evidence in the case that the property so conveyed was purchased with moneys stolen from Bacon by the defendant.”

Plaintiff’s affidavit for attachment alleged, inter alia, that defendant had “within two years last past fraudulently * * * disposed of his property, so as to hinder and delay his creditors.” In our opinion, the court did not err in giving such instruction. In Murry Nelson & Co. v. Leiter, 93 Ill. App. 176, 180, the court said: “Our Supreme Court has construed the attachment act as applying only in cases where the debtor has committed a fraud in fact, in doing the act found fault with, as contradistinguished from a legal or constructive fraud. They have, in decided cases, held that it is ‘not enough that the effect of the deed was to delay creditors, but it must have been executed with that purpose and intent,’ and that ‘granting writs of attachment in cases where only legal or constructive fraud is shown is outside of the general scheme and purpose of the attachment law.’ Weare Commission Co. v. Druley, 156 Ill. 25.” Even if such instruction were held to be erroneous, the giving of same could not have constituted prejudicial error, as it was the duty of the jury, under the evidence, to find the attachment issues in favor of the defendant.

The plea or traverse of defendant to plaintiff’s affidavit of attachment filed June 19, .1912, denied that within two years last past defendant fraudulently concealed or disposed of his property, etc. It is obvious that the period from May 14,1912, the date upon which plaintiff’s affidavit of attachment was filed, to June 19, 1912, is not covered by defendant’s plea. While such plea would have been obnoxious to a general demurrer, the failure of plaintiff’s counsel to call the attention of the trial court specifically to this question constituted a waiver of the omission complained of by plaintiff, in defendant’s plea. Devine v. Chicago City Ry. Co., 237 Ill. 278, 280; First Nat. Bank of El Paso v. Miller, 235 Ill. 135, 139.

For the reasons herein stated, the judgment of the Circuit Court is reversed and the cause remanded for a new trial on the assumpsit issues only.

Judgment reversed and cause remanded.