Appeal from the Circuit Court of Sangamon County; the Hon.
L.A. MEHRHOFF, Judge, presiding. Judgments adverse to defendants
Rehearing denied and opinion modified November 2, 1966.
The defendant Jack H. Weiner appeals from a judgment in the amount of $10,000 upon the verdict of the jury after remittitur. The defendant and counterclaimant, Organ Grinder, Inc., appeals from a judgment entered upon the verdict of the jury finding in favor of the plaintiff counterdefendant as to the counterclaim and a judgment entered upon the verdict of the jury in the amount of $6,702.68 upon plaintiff's complaint.
Count I of the complaint alleges that on the 10th day of July, 1958, plaintiff, through its president Wolford Morris acting upon the request of the defendant Jack H. Weiner, loaned to the latter the sum of $10,000 by delivering to him a check; that Weiner promised to pay the sum upon demand and that he failed to do so despite demands made upon him. In Count II the complaint alleges that on the 25th day of April, 1960, the plaintiff and defendant Jack Weiner met and stated an account by which the sum of $10,000 was found to be due from Weiner, who promised to pay said sum but has not done so despite demands made.
Jack H. Weiner denies the allegations of the complaint.
As to the defendant Organ Grinder, Inc., hereinafter referred to as "Corporation," the complaint alleges that from the 30th day of June, 1958, through June 10, 1959, plaintiff, at the request of defendant "Corporation," sold and delivered certain kitchen equipment, supplies, merchandise, appliances and fixtures which "Corporation" agreed to pay for; that on the 26th day of April, 1960, the plaintiff and defendant "Corporation," acting through and by Jack H. Weiner as an officer of "Corporation," met together and accounted concerning the total amount of money due and owing from "Corporation" to the plaintiff, and at that time "Corporation" agreed to pay such amount but had refused to make such payments after demand made; that after allowing all credits due "Corporation," it owes to the plaintiff the sum of $16,702.68, which remains unpaid.
The defendant Jack H. Weiner urges that the trial court erred in refusing to direct a verdict, in denying his motion to withdraw Count II of the complaint because of insufficient evidence under the provisions of c 110, § 68 (4), (Ill Rev Stats), and in refusing to enter a judgment n.o.v. In the alternative, defendant Weiner urges that a new trial should be granted this defendant Jack H. Weiner in that the verdict of the jury is against the manifest weight of the evidence, and that there is prejudicial error in the admission of the deposition of one Redfern. Each defendant alleges error in admitting plaintiff's Exhibits #14 and #15, purporting to relate to an account stated, and in the giving or refusal of instructions as discussed hereinafter.
Upon the issue as to whether the verdict against Jack H. Weiner should be set aside, we find that the dealings originate, so far as specific or documentary evidence shows, in plaintiff's Exhibit #5, dated June 26, 1958. This instrument, which was not abstracted, is in the form of an assignment to the Illinois National Bank of Springfield, Springfield, Illinois, of:
"Assignment of Contract on the `Organ Grinder Room' signed by J.H. Weiner, in the amount of $70,000.00."
This document bears the signature of J.H. Weiner as accepting the assignment made to the bank by Wolford A. Morris. Plaintiff's Exhibit B, also omitted from the Abstract, is a copy of a letter dated June 27, 1958, addressed to Mr. J.H. Weiner, Ridgely Bank Building, Springfield, Illinois, quoted in part as follows:
"This letter is written to notify you that I have assigned to The Illinois National Bank of Springfield, of Springfield, Illinois, the sum of $70,000. owing by you to me on contract."
which letter also authorized and directed Weiner to make payments by checks payable to both the assignee bank and Wolford A. Morris, and to send the checks directly to the bank until such time as notified that the assignment has been released. We find no dispute in the record concerning the authenticity or the applicability of these documents. This defendant testified that the assignment of the contract was accepted by him as an individual.
No specific contract, which would be the subject of assignment, has been put into evidence, but the testimony is that the execution of the assignment to the bank permitted plaintiff to finance equipment furnished in constructing the Organ Grinder Room. There is no controversy as to the fact that equipment was furnished.
With reference to the transactions alleged in Count I, Wolford Morris testified that shortly after the assignment he talked with Weiner in front of the hotel owned by defendant Weiner and adjacent to the Organ Grinder Room then being constructed, and that defendant told Morris that he needed money to pay contractors and suggested or requested that Morris borrow $10,000 against the assignment at the bank, and that defendant's partner in the hotel, one Yates, would return to Springfield in two or three days and that defendant would pay back the $10,000. Morris testified that he would have to talk to the bank because the assignment was only to be used for purchasing equipment. Morris further testified that thereafter he obtained a loan from the bank on the assignment and gave to the bank the note of plaintiff company. He testified that thereafter he drew a check upon the company account payable to defendant. Plaintiff's Exhibit #8 is a check in the sum of $10,000. Upon examination of the exhibit, it appears that the payee of the check is "Jack Weiner" in a form of printed script. Immediately above the name of the payee, in written script, there appear the further words, "Organ Grinder Room." Upon the reverse side of the exhibit appears the legend "Organ Grinder, Inc. Stanley A. Weiner for deposit." Morris testified that he delivered the check to the defendant, but that at the time of such delivery, the words "Organ Grinder Room" were not on the check. Dorothy Bailey, plaintiff's bookkeeper, testified that she prepared the check and that the payee inserted by her was "Jack Weiner," and that she did not insert the words "Organ Grinder Room." Morris further ...