Smith v. Norris, 202 Ill. App. 416 (1916)

Oct. 13, 1916 · Illinois Appellate Court
202 Ill. App. 416
India Smith, Defendant in Error, v. John B. Norris, Plaintiff in Error

India Smith, Defendant in Error, v. John B. Norris, Plaintiff in Error.

(Not to he reported in full.)

Error to the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the April term, 1916.

Reversed.

Opinion filed October 13, 1916.

Rehearing denied December 2, 1916.

Statement of the Case.

Action in assumpsit by India Smith, plaintiff, against John B. Norris, defendant, on a promissory note for $400. To review a judgment for plaintiff for $442.22, defendant prosecutes a writ of error.

The defendant had leased one Wiley Smith, husband of the plaintiff, a ranch which was to be farmed by Wiley Smith and the profits, after certain reimbursements made to the defendant, to be shared by the parties.

The declaration comprised three counts: The first alleged that the defendant on the 31st day of October, *4171912, by one Wiley Smith, his then agent in that behalf, borrowed of the plaintiff, and the plaintiff at the special instance and request of said defendant then and there loaned the said defendant the sum of $400, etc. The second count alleged that the defendant on the 21st day of October, 1912, was doing business by the name of the “J. B. Norris Ranch,” and the plaintiff at the special instance and request of said defend-, ant loaned to the defendant and the defendant then and there borrowed $400 to be paid by defendant when he should be requested; that the defendant by one Wiley Smith, his then agent in that behalf, executed and delivered to the plaintiff his certain written instrument and thereby then and there acknowledged that there was due the plaintiff the sum of $400 for money loaned the defendant by the plaintiff, etc. The third count consists of common counts consolidated.

The instrument sued on is as follows:

“Morral, Ohio,-191--

“Twin Falls Idaho, Oct. 31st, 1912, due Mrs. India Smith, four hundred dollars ($400) for money loaned J. B. Norris Ranch account Bank Draft from Morral,

Ohio.

“ J. B. Norris Ranch,

“By Wiley Smith.”

Buckingham, MoDavid & Monroe, for plaintiff in error.

Outten, Ewing, McCullough & Wierman, for defendant in error.

Abstract of the Decision.

1. Assumpsit, action of, § 75 * —when action will not lie against a partner. Assumpsit will not lie against one partner on a promissory note signed in the firm name.

Mr. Justice Eldredge

delivered the opinion of the court.

*4182. Assumpsit, action of, § 89 * —when evidence in action for money loaned does not support judgment for plaintiff. In an action in assumpsit for money alleged in one count of the declaration to have been loaned to the defendant at his individual request, and in another count alleged to have been loaned to the defendant’s authorized agent, evidence held to show neither a loan to the defendant at his request nor that the alleged agent had authority to borrow money on behalf of the defendant.