Rozenski v. F. J. Dewes Brewery Co.

Mr. Presiding Justice Adams delivered the opinion of the court. Counsel for defendant seeks a reversal of the judgment on the following grounds: 1. The court erred in refusing defendants an opportunity to procure an interpreter. 2. There is no evidence of joint liability. 3. Ludwika’s promise was within the statute of frauds. 4. The court erred in instructing the jury. 5. The court erred in refusing to set aside the judgment and grant a new trial. In regard to the first ground, it is sufficient to say that no exception was taken to the action of the court in declining to delay the trial to give the plaintiff an opportunity to procure an interpreter. Thomas Rozenski, by omitting to plead non-joint liability, admitted joint liability, leaving to the plaintiff merely the burden of proving the liability of Ludwika. Stevenson v. Farnsworth, 2 Gilm. 715; Davis v. Scarritt, 17 Ill. 202. Counsel for the defendants contend that Ludwika’s promise was without consideration, and being merely oral, and to pay the debt of another, or others, is within the statute of frauds. We think there was a sufficient consideration for the promise, namely, the taking out by plaintiff of a saloon license, which, it appears from the evidence, the plaintiff would not have done except for the promise. It is true that, the declaration containing only the common counts, it was not necessary for the defendants to plead the statute of frauds, but it is necessary to appear from the record that defendants relied on the statute in the trial court, as it is well established that the objection can not be effectually made for the first time in this court. Boston v. Nichols, 47 Ill. 353; Deniston v. Hoagland, 67 Ib. 255. The following occurred in the cross-examination of one of the plaintiff’s witnesses : Q. “ When Mrs. Rozenski came to your place, as you say, and she promised y ou she would pay the indebtedness or guarantee it for Thomas Eozenski—was that verbal or in writing?” A. “Verbal.” Mr. Hewfeld: “ If the court please, I move now that all the evidence as to the promise be stricken out.” “ Which motion was denied by the court, to which ruling of the court the defendants, by their counsel, then and there duly excepted.” This is positively all that occurred by way of exception or objection to the evidence in relation to Ludwilca’s promise. The statute of frauds is not mentioned in the motion or anywhere in the record, nor is the ground of the motion stated, nor was any instruction in reference to the statute of frauds requested by the defendants or either of them. While it is not necessary to plead the statute to a declaration consisting only of the common counts, in order to set it up as a defense, we think that, in analogy to what is required in a plea, when necessary to plead the statute, it should clearly appear that the statute is relied on. In the present case it could have been so made to appear by stating, as the ground of the motion, that the promise relied on by the plaintiff was to pay the debt of another and was not in writing. This was not done. The motion was general, stating no ground, and was insufficient, as we think, to raise the question. Ho exception was taken to any instruction of the court. We find no reversible error in the refusal of the court to set aside the judgment and grant a new trial. The judgment will be affirmed.