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Larson v. R.w. Borrowdale Co.

OCTOBER 7, 1964.

JOHN LARSON, PLAINTIFF-APPELLEE,

v.

R.W. BORROWDALE COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Municipal Court of Chicago; the Hon. CHARLES P. HORAN, Judge, presiding. Affirmed.

MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

Rehearing denied November 18, 1964.

A judgment was entered in the Municipal Court of Chicago in favor of John Larson and against R.W. Borrowdale Company, in the sum of $4,500 and costs, on May 27, 1963. The defendant appeals from the judgment.

The judgment was based on the finding of the trial court that the plaintiff was entitled to commissions for the sale of two custom-built cameras to a third-party purchaser. Commissions were found to amount to $4,500.

The defendant here contends; 1) that there was no issue before the trial court inasmuch as the defendant filed no answer to plaintiff's amended statement of claim; *fn1 2) that the finding of the trial court was against the manifest weight of the evidence; and 3) that the defendant was denied a fair trial by the trial court since the trial court excessively cross-examined the defendant.

The plaintiff was 72 years old and had formerly managed Donnelley's Off-Set Rotogravure, and he still received $80 per month from them, plus social security. The defendant company is owned by Russell W. Borrowdale and custom-builds cameras and attachments. The defendant company built two large cameras to order for the Process Color Plate Company, owned by Grady Oakes, and it is on these sales that the plaintiff claims commission.

On or about January 5, 1960, the plaintiff had engaged a collection agency to act for him. The agency sent a letter to the defendant, demanding $942.88, which included interest. On February 26, 1960, suit was filed on behalf of the plaintiff against the defendant. The verified claim was based upon a sale of goods on or about June 1, 1959, for which plaintiff demanded the sum of $1,715.43 in commissions as a result of said sale. Attached to the statement of claim was a letter from the defendant to the plaintiff dated June 19, 1959, which stated:

"The Total Commission On The Camera Sold To, Process Color Plate Company at 1200 West Monroe Street, Chicago, Illinois will be $1,715.43. Paid on account $200.00.

Yours truly, R.W. Borrowdale Company /s/ R.W. Borrowdale R.W. Borrowdale"

On April 18, 1960, the defendant filed a verified defense in which it denied that the plaintiff at any time sold any goods for or on behalf of the defendant, and it further states that the letter of June 19 was not written to acknowledge an indebtedness "but merely to advise plaintiff that if he, the plaintiff, were to buy a certain camera and resell it to a certain lithographer in connection with the then pending deal, the discount or commissions to plaintiff would be $1,715.43." The defendant says that the statement in the letter "paid on account $200.00" was his way of indicating that $200 had been advanced to the plaintiff which would be credited if plaintiff consummated the deal as the parties had contemplated.

It further states that prior to June 19, 1959, the defendant had at various times paid plaintiff the sum of $600 and that those payments were not payments against any commissions but "merely advances to plaintiff against future commissions which would accrue in the event that plaintiff sold any equipment on defendant's behalf."

The defense was verified. Both the attorney for the plaintiff and the defendant withdrew. New attorneys were substituted.

On June 20, 1961, the court entered an order permitting plaintiff to file the appearance of new counsel and to file an amended complaint, and on the same day the plaintiff filed an unverified amended complaint. (This complaint was verified by permission of the court during the trial.) In that complaint he alleged that on June 1 and on June 11, 1959, the plaintiff sold goods for defendant and that there became due to the plaintiff, as commissions, the sums of $3,187.10 and $3,506.90, or a total of $6,694. The letter of June 19 is incorporated by reference in the complaint. The complaint also states that the defendant has paid to the plaintiff the sum of $800, leaving a balance of $5,900 due the plaintiff.

No answer was filed to this complaint. The case was tried before the court without a jury. The court found for the plaintiff and against the defendant in the sum of $4,500 and costs, and entered judgment accordingly.

On June 17, 1963, the defendant filed his notice of appeal. In the trial of the case Russell W. Borrowdale, owner of the defendant company, testified. After reading the record we are in full accord with the statement in plaintiff's brief that throughout the trial the testimony of the defendant "was self-contradictory, unresponsive, argumentative, antagonistic and unbelievable."

The first contention made by the defendant is that the trial court erred in going to trial before an answer had been filed, contending that without the filing of the answer there was no issue before the court.

Counsel for the defendant urges that the case was not at issue when it went to trial inasmuch as the defendant had not filed an answer to the amended complaint. Section 32 of the Practice Act (Ill Rev Stats 1963, c 110, § 32) provides that the first pleading by the defendant shall be designated an answer. Ordinarily an answer is required to be filed in order to bring the case to issue. However, there also is a rule that where the defendant goes to trial without filing an answer and introduces evidence to prove his affirmative defense without calling the attention of the trial court to the fact that no answer to the complaint had been filed by him, he waives his right to object to the failure of the defendant to file an answer.

In Pallasch v. United States Fidelity & Guar. Co., 329 Ill. App. 257, 67 N.E.2d 883, the defendant contended that because of the plaintiff's failure to file a replication traversing new matter alleged in the defendant's answer, there was no issue before the court. In that case the court said:

". . . The evidence shows, however, that testimony was heard on the issues raised by the amended answer with reference to Pallasch's duties as manager of the Kruse service station. Since it appears that the parties regarded the issues as properly made, the filing of a traverse was waived. [Citing cases.]"

In Davis Milk Mach. Co. v. Tappen, 200 Ill. App. 464 (Abst), it was held that if the parties allow a suit to go to trial without the filing of a plea, or without formal issue or without formal pleadings, the error is cured by verdict. Also see Lindsey Haynes v. ...


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