Boxberger v. Scott

Mr. Chief Justice Scholfield delivered the opinion of the Court: This was assumpsit, by appellee against appellant. The declaration contained a special count on a promissory note, and the common money counts. Appellant pleaded non assumpsit; and the cause, by agreement of parties, was tried by the court without the intervention of a jury. Appellee proved the execution of a promissory note by appellant to himself, and the court, over appellant’s objection, admitted it in evidence; and, this being all the evidence, the court thereupon gave judgment in favor of appellee and against appellant for $360.70—the amount due upon the note for principal and interest. The only question attempted to be raised is, whether the court erred in admitting the promissory note in evidence. There was a material variance between the promissory note given in evidence and that described in the first count; but we fail to discover any valid objection to the admissibility of the evidence under the common money counts. The execution of the promissory note having been first proved, it was sufficient evidence to authorize a recovery, under these counts, without proof of a consideration. Nickerson et al. v. Sheldon, 33 Ill. 372; Childs v. Fischer, 52 id. 205. Nor does the fact that the promissory note is not the same that is described in the special count, affect its admissibility as evidence under the common money counts. The Peoria and Oquawka Railroad Company v. Neill, 16 Ill. 269; Lane et al. v. Adams, 19 id. 167; Gilmore, imp. etc. v. Nowland, 26 id. 200. This case ought to have been affirmed, solely on the ground that appellant failed to comply with the rule of the court in regard to making abstracts; but, inasmuch as the record is very short, and but a single point, involving no controversy of fact, is presented, we have thought the omission may have been the result of inadvertence, and have, in consequence, considered the case upon its merits. There is no error in the record, and the judgment is therefore affirmed. Judgment affirmed.