Cooper & Co. v. Coates & Co.

Mr. Justice HUNT delivered the opinion of the court. The objections in this case are, none of them, serious in their character. By the rules of common law it is certainly necessary that parties who sue as co-plaintiffs, alleging themselves to be partners, shall make proof of that allegation. The same is true of persons who are alleged to be copartners, and sued as such as defendants. By the statutes of Illinois the rule of law is changed in this respect unless a plea in abatement is interposed, or verified pleas are filed denying the execution of a writing set up. The statute-rendered unnecessary in this case proof of the partnership or joint liability of either the plaintiffs or defendants. * The objection to the evidence of the witness, White, in stating the dates of delivery and the weight of the iron is not practical. If we suppose the evidence to be stricken out, as requested, the result of the case must necessarily be the same. It would then stand thus: The witness, White, testifies that he knows of the delivery to the defendants of certain plates of iron, forwarded by the Baltimore and Ohio Railroad Company, in January and February, 1870; that the freight bills were paid by the defendants, and that the defendants made no complaint that the amount of the iron was less than it should be. The plaintiffs then proved by other witnesses that the four bills of iron were shipped by them by the Baltimore and Ohio Railroad to the defendants *111 in pursuance of written orders from them, marked C. & J. Cooper & Co., a few days prior to the dates mentioned in White’s deposition; that the bills of lading for the iron were mailed to the defendants, and that the}' never came back to the plaintiffs. This was prima facie evidence of the delivery of the iron as specified, and, no proof to the contrary being offered, it became conclusive. The plaintiffs’ case is as well without White’s evidence as with it. The defendants suffer no injury by its retention, and have, therefore, no legal cause of complaint. * The objection to the allowance of interest was not well taken. So far as the case shows, this was the only transaction that ever took place between the parties; and it is not pretended that any payments were made or articles furnished by the defendants which could give the transaction the character of a mutual account. It was simply the case of a bill of goods furnished upon a written order, and a bill of lading of the articles at once mailed to the defendants. No objection was made by the defendants to the articles or to the account. A draft was drawn upon the defendants for the amount, which they refused to accept. This was equivalent to a demand of payment. An account (assuming this to be such) draws interest after liquidation, and it is considered liquidated after it is rendered, if no objection is made. † A sale of goods without a term of credit given is liquidated when contracted, and after the account is presented and impliedly admitted, the defendants are in default and chargeable with interest. ‡ Judgment affirmed. Footnotes [*] Statutes by Gross, vol. i, p. 270, §§ 11,12; Warren v. Chandler, 12 Illinois, 124; McKinny v. Peck, 28 Id, 174. [*] Shay v. The People, 22 New York, 317; Sherman v. Johnson, 56 Barbour, 59; Weber v. Kingsland, 8 Bosworth, 415. [†] Patterson v. Choate, 7 Wendell, 441. [‡] Been v. Reynolds, 11 New York, 97; Pollock v. Ehle, 2 E. D. Smith, 541.