Adams Express Co. v. King

Wall, J. This was an action of assumpsit, by the defendant in error against the plaintiff in error. The amended declaration, filed at the January term, 1878, contained three counts: the first alleging that the plaintiff in error, on the 19 th August, 1864, undertook to carry a valuable package from D. E. Bluff’, Arkansas, and deliver it for plaintiff to James Brown, at Liberty, Illinois; and that the package was not so delivered, etc. The second count is in substance the same as the first, and the third is a common count for goods, wares and merchandise, etc. Eone of these undertakings were alleged to be in writing, but attached to the declaration was a copy of an express receipt for a package said to contain §170.00, dated D. E. Bluff, Aug. 19, 1864, with certain conditions not set out in either count. The pleas filed were: 1st, non assumpsit; 2nd, Statute of Limitations, 10 years; 3d, that the supposed causes of action in the 1st, 2nd and 3d counts were for the same thing, to wit: a supposed failure to deliver the package in question; that by the terms of the contract the defendant was not to be liable for loss unless the claim was made in writing at the office of defendant in D. E. Bluff within thirty days from the date of the receipt, with the receipt or contract attached; that no such'claim was presented within thirty days, nor within a reasonable time, nor at any time within thirteen years, etc. The court, on motion of the plaintiff, struck the 2nd plea from the flies, and sustained a general demurrer to the 3d plea. The 2nd plea was properly entitled of the cause, and as to the 3d count, was good. It was good as to the 1st and 2nd counts, unless it can be said that they are upon a written instrument—but these counts do not in terms declare upon a written instrument. To all the counts the plea would have been good if it had averred the lapse of five years only. The greater includes the lesser, and it would seem to be no serious objection that it alleged ten years instead of five. It is urged that defendant is a foreign corporation, and could not avail of the Statute of Limitations. The declaration avers that defendant is, and was since the cause of action accrued, resident in Hew York, but it does not aver that defendant is a corporation. Wallace v. The People, 63 Ill. 451. The averment of non-residence in the declaration is not necessary and not traversable. The plaintiff, to recover, is not bound to prove the fact in the first instance. It could become important only in case the statute should be plead as a defense. The regular course of pleading was for defendant to set up the bar by plea, and for plaintiff to reply specially the absence from the jurisdiction. It was error to strike this plea from the files. The 3d plea was inartificially drawn, and was obnoxious to a special demurrer, for several reasons, assigned in the brief, but these objections could not be reached by general demurrer. We think it is good in substance. It is urged that this plea was interlined after filing, and that as originally drawn it was wholly insufficient, Since the record was filed in this court the court below on motion of plaintiff, struck out the words so interlined. Affidavit is made in this court by counsel who wrote the plea that the interlineations were made before it was filed, and the original has been sent here for inspection. We have examined it, and are unable to say from its appearance that the interlineations were made subsequent to the filing of the plea. They seein to be in the same handwriting and ink as the body of the plea, and this is consistent with the affidavit. However, we think the matters interlined are not essential. Without them the plea alleges that the contract contained the condition in question, and that this was a part of the agreement. The proof would not sustain this averment if it appeared that this condition was not known or assented to by the plaintiff; but it is unnecessary to aver in the plea more than that it was the contract. If the conditions were unknown and not accepted, they did not become a part of the contract. For the errors indicated the judgment is reversed and the cause remanded. Reversed and remanded.