Brillow v. Oziemkowski

Mr. Justice Baker delivered the opinion of the'court. Appellant filed in the Count}' Court a motion in writing for a new trial, specifying the grounds therefor, which did not state or include as a ground for new trial that the court refused to give instructions asked for bv appellant. In this court he assigns for error the refusal of the tual court to give certain instructions. By filing his points in writing in support of his motion for a new trial and omitting therefrom the point that the court erred in refusing to give instructions requested by him, he waived his right to assign for error here the refusal of the court to give such instructions, and the general statement in his motion “ because of other good and sufficient grounds,” will not supply the omission. West Chicago St. R. R. Co. v. Kruger, 168 Ill. 586; Tri-City R. W. Co. v. Weaver, 106 Ill. App. 312. Appellant further contends that the $180 paid on Decernber 1, was not the money of appellee, but was the money of his father, and that therefore appellee was not entitled to sue for, or recover it. The receipt given at the time the money was paid recites that the money .was received from Albert Oziemkowski; both he and his father testified that the money so paid was the money of Albert and the jury by their verdict found that it -was the money of Albert and we cannot say that such finding is against the evidence. Appellant further contends that if the money was the money of Albert, still he' had the right to take therefrom not only his commission for said loan but also his charges and expenses connected therewith, and that therefore the verdict is against the evidence or at least that the damages are excessive. The contention of appellee is, that the evidence shows that Avhen appellant wrote Joseph Oziemkowski on November 24, that his loan of $3,500 had been accepted, he knew of the existence of the judgment against Bartkowiak, and the Oziemkowskis did not; that by concealing from appellee such knowledge and the fact that by reason of the judgment appellant would not make the loan, appellant induced appellee to pay to him $105 for commissions" on the loan and $75 for interest on the old mortgage to Stone & Co. and in so doing, perpetrated upon appellee a fraud. We cannot agree with this contention. As between appellant and Joseph Oziemkowski, appellant’s commissions were earned when he found a person ready to loan $3,500 upon the property. Tellard v. Brinkerhoff, 45 Ill. App. 580, S. C., 163 Ill. 441. And this must be held to mean upon a mortgage or trust deed which should be a first lien on the property. Brillow’s testimony that he obtained from Gilbert $3,500 to loan on the property, is not disputed. He had therefore earned his commissions. Appellee paid the $105 to pay the commissions so earned and this money in our opinion appellant is entitled to retain. The $75 was paid by appellee to be paid to Stone & Co. for interest on the old mortgage “ when the loan is closed.” The loan was never “closed” and when appellant declined to close the loan because of the judgments, he should have returned the $75 to appellee. He had no right to take anything but his commissions from the money of appellee. All that appellee was entitled to recover was the sum of $75, and 'interest thereon from December 1, 1897, to the date of the judgment March 14, 1902, $91.30. The judgment was for $144.30, $53 more than appellee .was entitled to recover, and to that extent the damages awarded to appellee were excessive. If within ten days appellee shall remit from the judgment the sum of $53, the judgment will be affirmed at the costs of appellant, otherwise the judgment will be reversed and-the cause remanded. Affirmed upon remittitur, otherwise reversed and remanded. Remittitur filed and cause affirmed February 17, 1904. Affirmed.