Niedner v. Friedrich

Mr. Justice Gary delivered the opinion of the Court. Upon conflicting evidence a jury has found that the appellants, a firm composed of a father and two sons, junk dealers, took the business and stock of another son, separately engaged in the same line, under an agreement with him to pay his debts, and that among those debts was the one upon which the appellee has recovered in this suit. On the trial the wife of the last mentioned son was admitted as a witness for the appellee. This was error and duly excepted to; but in the motion for a new trial the point was omitted, and thereby waived. Brewer v. Nat. Un. Bldg. Ass’n, 64 Ill. App. 161, and cases there cited in connection with Hintz v. Graupner, 138 Ill. 158. By consent the court charged the jury orally—how is not shown. On the motion for a new trial, for the first time, so far as the record shows, the statute of frauds was presented as a defense, for, although pleaded, it does not appear that the attention of the court was ever called to the pleas. No allusion to it was made while the evidence of the agreement was being put in, nor any objection made to the reception of any testimony except as before stated. The statute of frauds is a defense easily waived. Beard v. Converse, 84 Ill. 512. If the appellants intended to rely upon the statute, they should not have postponed that reliance until after verdict. They naturally hoped that the verdict would be in their favor, without resorting to that defense, which is not a popular one; but they may not speculate upon the chances. Taylor v. Roby, 37 Ill. App. 147. This view relieves us from considering the applicability of the statute—a question involved in a maze, compared with which the labyrinths of antiquity were king’s highways. There is no error, and the judgment is affirmed.