Fitzgerald v. Lorenz

Per Curiam: In deciding this case the Appellate Court delivered the following opinion: “Appellant’s counsel contends that the variance between the original declaration and the notes put in evidence is fatal; that the court erred in permitting an amendment of the declaration; that the amendment was so made that it is impossible to determine in what part of the declaration it belongs; that it is not supported by the proof; that the court erred in ordering the plea of the general issue to stand as a plea to the amended declaration, and in overruling the demurrer to the amended declaration, etc., and that the judgment is excessive. “The declaration does not purport to set out the notes sued on in hcec verba, but only in accordance with their legal effect, and the latter is the proper and scientific mode of declaring on a contract. (1 Chitty’s Pl.—9th Am. ed.—p. 305; Crittenden v. French, 21 Ill. 598). “The legal implication from the words used in the notes, viz., ‘interest at six per,’ is that they were to bear interest at the rate of six per cent per annum. In Gramer v. Joder, 65 Ill. 314, the note sued on read: ‘One year after date I promise to pay to the order of Barbara Joder the sum of $4000 at ten per cent, value received.’ Held, the meaning was that the note bore interest at the rate of ten per cent per annum. In Thompson v. Hoagland, 65 Ill. 310, the note read: ‘One year after date I promise to pay William Thompson, or order, $374.79, at ten per centum from date.’ Held, that the note bore interest at the rate of ten per cent per annum. It will be observed that in neither of the two cases last cited was the word ‘interest’ contained in the note. See, also, Williams v. Baker, 67 Ill. 238, and Belford v. Beatty, 46 Ill. App. 539. “It follows from, these authorities that the averment in the original declaration, that the notes were payable ‘with interest at six per cent per annum,’ was in accordance with the legal effect of the note. This being so, if the amendment was not properly made, as appellant’s counsel contends, the irregularity is immaterial. “But we do not agree with counsel for appellant that it cannot be determined in what part of the declaration the amendment is to appear. It is to appear after the word ‘per’ and as a substitute for the words ‘cent per annum, ’ which last words are to be stricken out, and there is not the least difficulty in ascertaining the places where the words ‘per cent per annum’ occur, there being only two such places in the declaration, one in each of the special counts. If, then, the declaration be considered as amended, and the question whether the words ‘interest at six per’ mean interest at the rate of six per cent per annum, solely a question of fact, the jury were fully warranted in their finding. In Thompson v. Hoagland, supra, the court say: ‘The word ‘interest’ is not found in the note, yet we cannot but consider it, and it would be received in the money market, as a note bearing ten per cent interest per annum from its date.. That would be the common judgment of any body of men to whom it should be submitted.’ Such was the understanding of the parties themselves. On the $1000 note is endorsed a receipt of James Lorenz of date February 1, 1896, for $70, ‘being interest in full to above date.’ This is exactly the amount due February 1, 1896, for interest from December 1,1894, at the rate of six per cent per annum. On the note for $900, and under date July 1,1896, is a receipt for $85.50 ‘interest,’ the exact amount of interest due from the date of the note to July 1,1896, at the-rate of six per cent per annum. “When the court permitted the amendment of the declaration, appellant did not move for leave to file an additional plea. He cannot now, therefore, be heard to complain. (Knefel v. Flanner, 166 Ill. 147). “It does not appear from the record that appellant has any defense inadmissible under the general issue. On the trial he offered no evidence, his sole defense apparently consisting of objections. Appellant’s demurrer •was to the whole declaration, was general, and was properly overruled. “Appellant’s counsel suggests that the judgment is greater than warranted by the evidence. The amount of the judgment is not in excess of principal and interest due November 11,1897, the date of the trial, after deducting all payments proved. * * * “The judgment will be affirmed.” We concur in the views above expressed, and in the conclusion above announced. Accordingly, the judgment of the Appellate Court is affirmed. Judgment affirmed.