Titsworth v. Hyde

Mr. Justice McAllister delivered the opinion of the Court: This was an action of assumpsit, brought by appellees against appellant to the November term, 1869, of the superior court of Chicago, to recover upon two promissory notes made by appellant, payable to Ms own order and endorsed to appellees, amounting to about $1450, and upon the common counts. It appears from the bill of exceptions that, upon an affidavit and notice, under the rule of that court, it' was ordered to be tried out of its order, and was so tried, resulting in a verdict and judgment in favor of appellees, upon which it was brought here by appeal. The points for reversal made by appellant are: 1, that appellant showed, by his affidavit, that the defense was made in good faith; 2, that the court had no power to try the case out of its order, because that contravened a plain statute. The only plea filed was the general issue. It has been deemed a general principle of our practice, that the defendant had the right to compel the plaintiff to prove his cause of action. That is made conditional, now, in the courts of Cook county, upon the filing, in a certain class of actions, an affidavit of merits. This right is secured by the general issue in most actions, and which constitutes a defense to the action, to the extent of requiring plaintiff to prove his case. The rule of court in question means something more than that the defendant makes that kind of defense in good faith, because, even under the short notice, the plaintiff is bound to prove his case. Appellant, to prevent such trial, tendered his own affidavit, which really shows that he had no legal defense to the notes. He sets out a mere executory verbal agreement with the appellees, without any kind of a consideration to support it, to take ninety cents on the dollar for the notes. The payment of a less sum of money than the real debt would be no satisfaction of a larger sum without a release by deed, and certainly an executory agreement to take a less sum, without payment or acceptance, can be no defense. The second point is decided by the case of Wallbaum v. Haskin, 49 Ill. 315, and the judgment below is affirmed. Judgment affirmed.