Schwartz v. Southerland

Mr. Justice Waterman delivered the opinion of the Court. Appellee, in 1883, began this suit against four persons, of whom Charles Schwartz was one; the suit was afterward dismissed as ¡to one of the defendants, another died, and the case proceeded to trial against Schwartz and Charles K. Willard, with the result of a judgment for over $7,000 against Schwartz & Willard. The defendants were brokers in Chicago, engaged in buying and selling stocks upon the market in Hew York. Appellee dealt with them as such. Upon the trial, Schwartz offered certain depositions taken in Hew York; these were excluded by the court. In so far as these depositions showed the entries and accounts upon books kept in Hew York, we do not think they were admissible; they were res inter alios aeta. Boyd v. Yerkes, 25 Ill. App. 527. Schwartz had, however, a right to show in what manner' the orders of appellee had been obeyed, and for this purpose could show sales and purchases, in compliance with appellee’s directions, by any one who knew of the same. If the persons who executed these orders kept any memorandum of the same, or any was made at the time under their direction and supervision, they could refresh their memory therefrom. Schwartz was entitled to show the dissolution of the firm' with which appellee began his dealings, and his knowledge of such dissolution, and also other changes in the firm, of which appellee had notice. It was contended by Schwartz that a settlement or compromise was had with appellee of his claims against the defendants, his brokers; and that, by the terms of this settlement, 500 shares of Wabash preferred stock were purchased by defendants for account of appellee, and were to be carried for him without margins. Appellee contended that this stock was sold without his consent.- Schwartz was entitled to show that it finally became worthless, as well as its value from time to time subsequent to the sale. The depositions should not have been entirely rejected. Schwartz asked leave to withdraw a plea of set-off; this the court permitted him to do under certain conditions. The imposing of these conditions is complained of as, error. The conditions should not have been imposed and should be removed. Ayres v. Kelley, 11 Ill. 17; Winslow v. Newlan, 45 Ill. 145; Shabad v. Hanchett, 40 Ill. App. 545; Quick v. Lemon, 105 Ill. 578; Theobald v. Colby, 35 Me. 179; Loren v. Hanks, 3 McCord (S. Car.) 328. Notwithstanding there was, under our statute, no proper plea by Schwartz denying joint liability, he should have been permitted to introduce evidence showing that he was not jointly liable. The effect of the statute is only to relieve the plaintiff from proving the joint liability, if the defendant fails to file a proper plea of denial and fails to show that he is not jointly liable. It is in “the first instance ” that the plaintiff is not required to make proof. of joint liability. Bensley v. Brockway, 27 Ill. App. 410; Supreme Lodge of United Workmen et al. v. Zuhlke, 129 Ill. 298. Instructions four and five for plaintiff should not have been given. We do not deem it necessary to comment further upon the trial in the court below. As to whether there was a compromise and settlement in May, 1883, and as to whether the agreement, if any, then made, has been carried out, or the benefit thereof received by appellee, by availing himself in whole or in part of the same, and as to whether the agreement then made was broken by appellant, and if so, the effect thereof, and the damage that appellee has suffered by reason of such breach, if any there was, are all, under the plea of the general issue, questions of fact to be submitted, under proper instructions, to a jury. The judgment of the Superior Court is reversed and the cause remanded.