APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH
M. WOSIK, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Plaintiff, Rose I. Telpner, the widow of Louis Telpner, brought this suit in her capacity as the legal representative of his estate. The decedent at the time of his death on September 23, 1963, had in his possession eight promissory notes that are the subject of this action; seven of the notes were made out to Louis Telpner, as payee, by defendant Hogan as maker, and defendant is guarantor on an additional bearer note. The principal amount due on the notes was $19,862.00. Additionally, plaintiff sought recovery of interest in the amount of $5,016.29 and attorney's fees of $1,326.41. Thus, plaintiff's total claim amounted to $26,204.70.
Judgment by confession was originally obtained and defendant petitioned to vacate that judgment. The judgment was opened and the defendant was granted leave to defend; thereafter, defendant filed his answer admitting his signature on the eight notes and alleging the defense of payment as to three of the notes and the defense of lack of consideration as to the remaining five notes. Defendant also filed a counterclaim against plaintiff in the amount of $6,000.00 pursuant to chapter 74, paragraph 6, Illinois Revised Statutes (1965), alleging usury as to a $6,900.00 note (one of the eight) dated March 14, 1962. After a trial without a jury, the court ruled in defendant's favor as to the notes, and against the defendant on his counterclaim, and it is from the judgment for defendant that the plaintiff prosecutes this appeal.
The issues presented for review are:
1. Whether the rulings of the trial court with respect to the order of proof and scope of cross-examination constituted prejudicial error.
2. Whether plaintiff's failure to list, in verified probate documents, the specific and entire indebtedness claimed to be owing in this suit constituted sufficient evidence that said debts had been released and satisfied.
3. Whether the evidence supported the trial court's finding that the defendant had discharged his indebtedness on the notes sued upon.
At the trial plaintiff presented the eight notes, each bearing defendant's admitted signature, and testified that each of the notes was in decedent's possession at the time of his death. In his cross-examination of the plaintiff, the defendant questioned the plaintiff regarding a number of documents, each of which purported to be a statement of the account between the defendant and the estate of Louis Telpner. In each instance the amount due from the defendant differed from the amount claimed in this action.
The first such document was an inventory of plaintiff's husband's estate which the plaintiff had filed with the Clerk of the Probate Court of Lake County on July 7, 1964. The inventory listed the following sums owed by the defendant:
Robert Hogan cash advanced 7,875.38 Robert Hogan Land Account 3,986.00 thus claiming a total indebtedness due the estate from defendant in the amount of $11,861.38.
The second document was a statement prepared by the decedent's accountant at the plaintiff's request covering the period from Oct. 22, 1958, to Aug. 30, 1965. The statement reflected a sum of $16,666.54 due to the estate from the defendant as of Aug. 30, 1965.
The plaintiff also identified an affidavit which she had filed in this suit on March 28, 1967, in opposition to defendant's motion to vacate the judgment entered on the eight notes. The relevant portion of the affidavit states:
"That from October 22, 1958, to December 14, 1965, there are various and sundry charges against Robert T. Hogan in behalf of Louis Telpner or his estate, representing loans, insurance premiums, mortgage payments, taxes, etc. in a total amount of $59,539.62, against which credits are given including payments made, in the amount of $33,676.60, leaving a present balance of $25,863.02.
That the eight notes upon which judgment was confessed, were given by Robert T. Hogan to secure specific loans, none of which were ever paid and the total principal amount of such notes being $19,862.00, a sum far below the amount of $25,863.02, presently owed by Robert T. Hogan to the estate of Louis Telpner."
The defendant continued his cross-examination of the plaintiff by requesting that she explain the apparent discrepancy among the various figures. The defendant had the plaintiff identify two additional documents: the first was a revised current accounting and supplemental data filed by her as executrix reflecting that $5,415.39 had been collected on defendant's account; the second was a receipt for $600 made out to defendant by the decedent in 1963. The defendant then continued to question the plaintiff about various financial dealings with defendant.
Defendant, called by plaintiff as an adverse witness, testified that he had made numerous payments, by cash and check, on the various notes. Defendant submitted numerous checks, payable either to the plaintiff, her husband, the estate, Samuel Jacobsen, Coral Gables Federal, or to cash. The defendant explained in his testimony that some payments were made to Samuel Jacobsen, his attorney, since the latter acted as the defendant's agent and that some of the checks were for payments on the Telpner notes. The record does not disclose which payments were applicable to which notes. One receipt for a cash payment of $600.00 to Mrs. Telpner was also identified by defendant. The record further indicates defendant and decedent prior to decedent's death conducted many transactions involving insurance, real estate, and financial transactions. The defendant ...