Appeal by plaintiff from the Circuit Court of Cook county; the
Hon. BURTON A. ROETH, Judge, presiding. Heard in the first
division of this court for the first district at the October
term, 1950. Judgment reversed and judgment here. Opinion filed
April 9, 1951. Released for publication May 7, 1951.
MR. JUSTICE FEINBERG DELIVERED THE OPINION OF THE COURT.
Originally, judgment was confessed upon three promissory notes executed by defendant. Defendant filed his petition to vacate the judgment, setting up the specific defense of the Statute of Limitations. Upon a hearing the court denied the petition and reduced the original amount of the judgment to $16,774.85, it appearing that a mistake had been made in computing the amount for which the original judgment was entered. Upon appeal from the order denying the petition, the judgment was reversed and the cause remanded (336 Ill. App. 156) because the petition prima facie set up a defense and, therefore, the judgment should be opened and defendant allowed to defend. Thereafter, upon a trial with a jury, a verdict for the defendant was returned and judgment thereon was entered. Plaintiff's motions for judgment notwithstanding the verdict and, in the alternative, for a new trial were denied, from which he now appeals.
The salient facts are undisputed. The three notes upon which judgment was confessed are dated February 1, March 1, and April 1, 1933, respectively, and the respective maturities were May 1, June 1, and July 1, 1933. Suit was filed July 21, 1947.
The evidence discloses that plaintiff was general agent for the Connecticut Mutual Life Insurance Company and entered into a contract with defendant, dated February 26, 1923, employing defendant as agent for plaintiff to solicit insurance. The contract provided for the payment of commissions upon policies procured by defendant as well as renewals thereof. This agreement further provided:
"The second party [Bramhall] hereby expressly authorizes the first party to charge against any commissions due under this Agreement to the second party, his executor or administrator, any indebtedness or liabilities of the second party to the first party."
A further agreement was entered into between the parties, dated November 3, 1932, which provided:
"I do hereby authorize and instruct you as General Agent, or The Connecticut Mutual Life Insurance Company, and any other General Agent or Insurance Company from whom I may be entitled to receive commissions, to pay said commissions directly to you, your heirs, executors, administrators, or assigns, until the amount due you, (as charged against me on your books, and as evidenced by notes, receipts or other evidence) shall be paid to you, your heirs, executors, administrators or assigns, together with interest thereon." (Italics ours.)
The last amendment of the agreement, dated May 27, 1937, relating to commissions, recited:
"Said agency agreement in all other respects is to remain in full force and effect."
The notes represented advances made by plaintiff to defendant against future commissions, and an account upon the books of plaintiff showed the three notes in question as part of the indebtedness of defendant, and was so recognized in the agreement of November 3, 1932. From time to time, as commissions due defendant were collected by plaintiff, they were credited against the debit balance shown in the account. Some of these debit items were for advances made after the date of the notes and, while a part of the account, were not evidenced by notes. Each month, from 1932 until March 31, 1938, monthly statements were rendered the defendant, showing the debits and credits. Each of these statements was signed by defendant and contained the endorsement that he had examined the statement and found it correct. For some unexplained reason the monthly statements rendered to him after March 31, 1938, in the same form, were received and retained by him, without objection, but not signed by him. Typical of all of these statements, except for amount and dates, was the following form:
"Debit balance $11,772.76
"No interest accrued since February 1, 1933 included in above debit balance.
"I have this 30 day of April, 1938 examined the above statement and find it correct."
The principal contention raised by defendant is that the notes, having been merged in the account upon the books of plaintiff, must be treated with the rest of the items as an open account, and that plaintiff had no right to apply commissions within the ten-year period of the Statute of Limitations following the maturities of the notes as payment upon said notes, resulting in the claimed tolling of the statute.
We regard the contention without merit for three compelling reasons: (1) the written agreement between the parties expressly authorized plaintiff to receive commissions due defendant and to credit them against any indebtedness of defendant, which necessarily included the notes in question; (2) the statement of account rendered each month to defendant in the form indicated, up to March 31, 1938, constituted an account stated, which carried with it the implied promise to pay; and (3) defendant testified that he knew that the three notes were included in the debit balance when commissions were credited in his account. No case has been cited which has held that, under ...