Wiltz v. Classen

Mr. Justice Thompson delivered the opinion of the court. At the April term, 1906, of the Circuit Court of Woodford county, a judgment by confession on a note and warrant of attorney was entered against Lewis Classen, appellant, and K. L. Classen for $1,640 and costs in favor of Altje Wiltz, appellee. The defendants at the same term entered a motion to set aside the judgment and for leave to plead. At the September term the motion was allowed. Defendants filed pleas of set-off, want of consideration, failure of consideration and that the consideration for the note was an illegal contract for services to he rendered by Lewis Classen in assisting the appellee in wrongfully obtaining from the Kational Government the repayment of duty paid upon imported stallions. With the plea of set-off, a bill of particulars was filed containing an item of $150 due for services, etc., from January 1 to March 25, 1904, and an item of $1.J5 for a shovel, fork and electric light globe furnished during the same period. The remaining items of the set-off are dated subsequent to March 25. Issue was joined on the pleas. The note upon which the judgment wras entered was executed in July, 1904, hut was dated back to March 25, 1904. The case was heard before a jury which returned a verdict in favor of plaintiff for $1,120.51. A motion for a new trial was overruled, judgment entered on the verdict and Lewis Classen appeals. The only error assigned and argued by counsel in the original brief is, that the court improperly refused to permit appellant to offer any evidence concerning the two items of set-off claimed by appellant prior to March 25, 1904, the date of the note. Counsel for appellee confess the error and enter in this court a remittitur of $151.75, the total of the two items. In their reply brief counsel for appellant argue that the note was given for the purchase of some horses, upon which appellee had paid $1,285 duty when they were imported, and that appellant entered into a conspiracy to defraud the government by assisting appellee to procure its return. Appellant not having argued this assignment of error in his original brief has waived the same. West Chicago Park Commissioners v. City of Chicago, 170 Ill., 618; Keys v. Kimmel, 186 Ill., 109; Conkey v. Rex, 111 Ill. App., 121; Trimble v. Terril, 99 Ill. App., 349. We have, however, examined the abstract and find there was no evidence that the matter argued in the reply had anything to do with the consideration for the note and no error was made by the court in excluding the evidence offered on the third, fourth and sixth pleas. The entry of a remittitur in this court of $151.75 cures the only error assigned and argued. The judgment will be affirmed for the balance, the costs in this court to be taxed against appellee. Affirmed for $968.76.