Central Lumber Co. v. Kelter

Mr. Justice Waterman delivered the opinion of the court. ' The Central Lumber Company was organized for “ the purchase and sale of lumber and all adjuncts for carrying on a general lumber business.” In order to sell lumber to Rafferty, a builder, it became surety upon his bond for the performance of a building contract. The guaranty was within the scope of its chartered powers. Richelieu Hotel Co. v. Military Enc. Co., 140 Ill. 248-263; same v. same, 41 Ill. App. 268; McCrory v. Chambers, 48 Ill. App. 445; Standard Brewery v. Kelly, 66 Ill. App. 267; B. S. Green Co. v. Blodgett, 55 Ill. App. 556; same v. same, 159 Ill. 169. The change of the action from debt to assumpsit did away with all pleadings not applicable to an action of assumpsit. Lehman v. Siggeman, 40 Ill. App. 276; Hogan v. Ross, 13 How. (U. S.) 173-183. The action of assumpsit is based upon a promise, express or implied. In assumpsit a promise is always alleged. An issuable plea to the merits therein is necessarily, in effect, a denial of the alleged promise. The plea of non estfaotum is not a denial of a promise but a denial by a defendant that some alleged deed is his deed. In the present case the special counts in assumpsit are based upon the bond; and proof of it was necessary to a recovery under such counts. Under the statute the execution of this bond, a copy thereof having been filed, could not, upon trial, be denied, unless a plea denying the execution of the same was filed, verified by affidavit. Sec. 34, Chap. 110, R. S. Appellant contends that having filed a verified plea of non estfaotxom in the action of debt, when that action was changed to assumpsit the plea of non est factum remained and was a good plea to the declaration in assumpsit, appellant insisting that the plea of non estfaotum was an answer to the declaration in assumpsit. We are not aware of any authority so holding. In Hinton v. Husbands, 2 Scam. 186, the Supreme Court speak of a plea in an action of assumpsit framed from precedents for the plea of non estfaotum in debt or covenant, “ to which the action of assumpsit has a marked similitude,” as if the court might have held the plea sufficient,had it not concluded with a verification, instead of to the country; as it was, a demurrer thereto was sustained. The plea in that case, notwithstanding its framework from precedents for the plea of non est faotum, goes on to say that the defendants did not undertake and promise, etc., thus being, with some surplusage, a plea of the general issue in assumpsit. This certainly is not an authority for the interposition of the plea of non est factxmi to a declaration in assumpsit. Neither Wolverton v. Sumner, 53 Ill. App. 115, nor Bailey v. Valley National Bank, 127 Ill. 332, support the contention of appellant. Whatever service the verified plea of non est factum, might in any view have filled, it performed none because it was by order of the court stricken from the files, June 2, 1900. There being no verified plea denying the execution of the bond, it was not necessary to prove such execution. The letter signed “ Central Lumber Company,” and dated June 3, 1895, was properly admitted in evidence. It purported to be from appellant, was apparently upon its office stationery, signed by its name, and was addressed, to appellees. The only objection made thereto was that it was “ incompetent, irrelevant and immaterial.” The question as to its admission is not whether a sealed instrument can be ratified by one that.is not sealed, but, was the letter admissible for any purpose. It is insisted that appellees did not reserve the twenty per cent which, under their contract, they might, and that it was their duty toward appellant to have done so. Had this twenty per cent been reserved, the effect would have been that the claims of appellees would have been increased by the amount of the reservation and then could have been diminished when appellants demanded, as they properly might, that it should be applied in reduction of the amount owing by Rafferty. This application has been’ made and appellees have had the full benefit thereof. Statements were from time to time made by Rafferty, apparently in attempted compliance with the mechanics’ lien law. No building liens appear to be resting on the premises; had there, been, they would have added to the claim against appellant; as it is, appellant has no cause for complaint growing out of mechanics’ liens, which attention on the part of appellees might have prevented. Undoubtedly appellees were bound to do nothing which would necessarily increase the burden of appellant; they had notice of its relation and were required to act accordingly. So far as appears, they did so; at least no act of theirs appears to have been prejudicial to appellant. The judgment of the Circuit Court is affirmed.