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Swift & Co. v. Dollahan





Appeal by defendants from the Circuit Court of Champaign county; the Hon. CHARLES E. KELLER, Judge, presiding. Heard in this court at the May term, 1954. Affirmed. Opinion filed June 7, 1954. Released for publication June 23, 1954.


This is an action at law to recover for money loaned and claimed to be due. The complaint consisted of two counts, not expressly stated to be in the alternative. In Count I plaintiff sought recovery upon a written instrument, attached to the complaint as an exhibit and incorporated in Count I, purporting on its face to be a promissory note of defendants dated January 9, 1951 in the sum of $2,050, payable to the order of plaintiff and bearing interest at the rate of 6% per annum. Count II erroneously described in plaintiff's brief as a common count, was a demand for repayment of $2,050 allegedly loaned on January 9, 1951 by plaintiff to defendants and not repaid despite demand, together with interest at 6% per annum. The cause was tried before a jury which returned a verdict for defendants on Count I and for plaintiff on Count II. The court entered judgment on the verdict for defendants on Count I and after remittitur of $276.34 for plaintiff on Count II in the amount of $2,065.52. Defendants' motion for a directed verdict as to Count II, upon which motion the court had reserved its ruling, was denied, as were defendants' alternative motions for judgment notwithstanding the verdict, in arrest of judgment and for new trial. Thereupon defendants appealed from the judgment against them and from the denial of their post-trial motions. No post-trial motions were filed with respect to, and no appeal was taken by plaintiff from the judgment in favor of defendants.

Plaintiff alleged in Count I that on January 9, 1951 it loaned defendants the sum of $2,050 and thereupon defendants delivered their promissory note in the amount payable to plaintiff's order and bearing interest at 6% per annum. A copy of the alleged note was attached as an exhibit and by reference thereto, made a part of Count I. The document was received in evidence on the trial. It is a printed form of note and provides in pertinent part:

"I, (We) jointly and severally, promise to pay to the order of Swift & Company, a corporation, at Decatur, Illinois for value received the sum of Two Thousand Fifty and No/100 Dollars in the following installments:

Surcharge of Twenty Cents (20¢ ) per gallon on all bulk and package, plus a volume discount of Fifteen Cents (.15¢ ) per gallon on bulk and Ten Cents (.10¢ ) on package on ice cream purchased until note is paid. With all costs of collection including __________ per cent attorneys fee if collected by law or through an attorney.

"Each of the aforesaid installments shall bear interest at the rate of Six (6%) percent per annum from date until paid.

"Should default be made by me (us) in the payment of any installment, as above provided, then the entire balance remaining due and unpaid upon said note shall at the option of the holder hereof forthwith become due and payable. . . . . . .

Vaughn E. Dollahan (Seal)

(Maker's Signature)

Elizabeth L. Dollahan (Seal)

(Maker's Signature)"

It was alleged that plaintiff was the owner of the note; that it was entitled to reasonable attorney's fee in the sum of $200 for effecting collection of the note; that no part of the principal had been paid; that interest had accrued but was unpaid; and that the unpaid principal and interest were past due. There were no allegations with respect to acceleration of the note or the matter of default, if any, on the part of the defendants in making installment payments as provided in the instrument, or any other material breach on the part of defendants, giving rise to a right in plaintiff to compel payment in a lump sum and in cash.

In Count II, which was characterized by the pleader as an "additional" count, plaintiff alleged the making of a loan to defendants on January 9, 1951 in the sum of $2,050; that thereupon defendants promised to repay the same upon demand with interest at the rate of 6% per annum from the date of the loan; that on August 14, 1952 plaintiff made demand upon defendants for payment of the loan with interest, without avail; and that the principal amount of the loan and interest thereon was due and unpaid. No reference was made in Count II to the alleged note attached to the complaint as an exhibit and incorporated in Count I.

Each count prayed for judgment in the sum of $2,281.74. Defendants moved to strike and dismiss the entire complaint. The motion made no distinction between the two counts. While defendants claim in their briefs in this court that the complaint, especially Count II, is defective in various respects, the only ground, other than a general statement that the complaint was not plain and concise, urged in the motion to dismiss was that the complaint was predicated on the instrument attached as an exhibit to Count I; that the instrument was by its terms payable in installments by means of ice cream purchase surcharges and discounts; that no facts were pleaded in explanation of the apparent failure of plaintiff to effect collection of the note pursuant to its terms; and that the action was prematurely brought.

[1-7] Defendants' assertion in their motion, repeated and argued at length in their briefs in this court, that Count II, as well as Count I, was predicated upon the instrument attached as an exhibit to Count I, could not be availed of by motion to dismiss. Count II did not refer to the exhibit and was on its face a statement of a claim separate and distinct from that stated in Count I, and was complete in itself without reference to the exhibit attached to and limited to Count I. On motion to dismiss the sufficiency of Count II was properly tested without reference to Count I or the exhibit thereto. Insofar as defendants sought by their assertions in their motion to dismiss to characterize Count II as one based on the exhibit, they were relying upon alleged matters of fact de hors the pleading and thus were guilty of pleading facts and demurring at the same time. Elliott v. Illinois Central R. Co., 318 Ill. App. 112, 119. A motion to dismiss, as was true of the demurrer under our former practice, raises only a question of law as to the legal sufficiency of the pleading to which it is directed. All well pleaded allegations of fact are admitted by the motion. Beadles v. Servel, Inc., 344 Ill. App. 133, 138. Since the facts stated in the pleading are admitted by the motion, the maker of the motion cannot at the same time controvert the admitted facts, either by assertions in his motion or ...

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