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Richman Chemical Co. v. Lowenthal

MARCH 31, 1958.

RICHMAN CHEMICAL CO., PLAINTIFF AND COUNTER DEFENDANT BELOW, APPELLANT AND CROSS APPELLEE,

v.

HENRY LOWENTHAL ET AL., D/B/A LOWENTHAL MANUFACTURING COMPANY, DEFENDANTS AND THIRD PARTY PLAINTIFFS BELOW, CROSS APPELLANTS, APPELLEES AND CROSS APPELLEES, TEXTO PRODUCTS CORPORATION, THIRD PARTY DEFENDANT AND COUNTER CLAIMANT BELOW, APPELLANT AND CROSS APPELLEE.



Appeal from the Municipal Court of Chicago; the Hon. GEORGE L. QUILICI, Judge, presiding. Judgment affirmed.

JUSTICE ROBSON DELIVERED THE OPINION OF THE COURT.

Rehearing denied April 29, 1958.

This was an action by Richman Chemical Company (hereinafter called Richman) against defendant Lowenthal Manufacturing Company, a copartnership (hereinafter called Lowenthal) for the value of certain goods alleged to have been sold and delivered to Lowenthal. Lowenthal filed an answer denying it was the purchaser of the goods and filed a third-party complaint against third-party defendant, Texto Products Corporation (hereinafter called Texto), alleging that the goods were sold to Texto and that if Lowenthal was liable to plaintiff then Texto was liable over to Lowenthal. Texto filed its answer admitting it had purchased the goods but denying liability because the goods were defective. It filed a counterclaim against Richman for breach of warranty of quality. Trial was had by jury, which returned a verdict in favor of Texto on its counterclaim against Richman for $20,000, and in favor of Richman and against Lowenthal for $10,214.40 for the price of the goods and in favor of Lowenthal and against Texto for $10,214.40. Richman appeals from the judgment against it on the counterclaim. Texto and Lowenthal filed cross appeals from the respective judgments against them but these cross appeals have been abandoned.

Richman contends that the trial court erred in (1) that there was no privity of contract between Texto and Richman and therefore Richman could not be liable to Texto for breach of warranty; (2) that there is no evidence that Texto sustained damages in the amount of $20,000, or in any amount whatsoever, and (3) in admitting certain letters into evidence from various dealers, customers and representatives of Texto in violation of the hearsay rule.

We have examined the abstract of record in an attempt to find Richman's post-trial motion specifying these objections but to no avail. We find only the following pertaining to it:

"Motion of Richman Chemical Co. for judgment notwithstanding the verdict, or in the alternative for a new trial filed March 12, 1957."

The abstract is the pleading of the party in a court of review. What is sought to be reviewed must be contained in that pleading. Gage v. City of Chicago, 211 Ill. 109. To make available the motion for new trial it must appear in the abstract. A court of review is not required to go to the record to reverse although it will search the record regardless of the abstract to affirm. McGovern v. City of Chicago, 202 Ill. App. 139; People v. Mattei, 381 Ill. 21; People v. Marshall, 309 Ill. 122; People v. Armour, 307 Ill. 234; Yarber v. Chicago and Alton Ry. Co., 235 Ill. 589; Herder v. People, 209 Ill. 50.

Rule 6 of this court requires the party prosecuting the appeal to furnish an abstract of record containing sufficient parts of the record to present fully the errors relied upon. This is substantially the same rule that has been in force for many years and is the same as Supreme Court Rule 38.

We are aware of the fact that it is expensive to print an abstract of record but this is not a cause for omitting the post-trial motion upon which the alleged errors of the trial court are predicated. We regret to say that too often of late we find the abstract of record is not properly prepared. The pleadings, instructions, post-trial motion and the evidence relied upon to show error are not properly abstracted, or are partially or entirely omitted. The court in many instances must spend substantial time going through the record in an attempt to determine the true facts. In simple cases on appeal, on good cause shown, the court "may dispense with the furnishing of an abstract or with the abstracting of matters in the record even though they are to be considered on appeal." (Rule 6 of Appellate Court.) No such action was taken in this case. However, as Texto has filed an additional abstract setting forth the post-trial motion and other essential facts of the record, we will consider plaintiff's contentions.

As to the first contention, Texto states that the post-trial motion did not specify the ground that there was no privity of contract between Texto and Richman. We have examined the motion and find no point or allegation that could be construed to cover it. The pertinent parts of the Illinois Civil Practice Act (Ill. Rev. Stat. 1957, ch. 110, sec. 68.1 (2)) state:

"The post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof, and must state the relief desired, as for example, the entry of a judgment, the granting of a new trial or other appropriate relief. . . . A party may not urge as error on review of the ruling on his post-trial motion any point, ground or relief not particularly specified in the motion."

The provision was designed to require parties in their post-trial motion to specifically set forth the ground or grounds upon which the motion was based. Its purpose was to prevent the moving party from hiding behind a general objection in the trial court and for the first time raising with particularity in the Appellate Court an objection that had not been argued before the trial judge. Concealment and surprise should be no part of present day practice. Foster v. Union Starch and Refining Co., 11 Ill. App.2d 346, 354; Rudolph v. City of Chicago, 2 Ill. App.2d 370, 375. The objection is well taken and the contention is not available for review in this court.

As to the second contention that the evidence is insufficient to support the award of damages, the specification in the post-trial motion that Richman contends pertains to this point reads as follows:

"Richman should be granted a judgment in its favor on the claim of Texto notwithstanding the verdict of the jury because every element and item of damages introduced in evidence by Texto was improperly admitted, and if excluded, then all of the evidence in this case taken in its intendments most favorable to Texto, does not prove or tend to ...


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