World Publishing Co. v. Fisher, 197 Ill. App. 641 (1916)

Feb. 1, 1916 · Illinois Appellate Court · Gen. No. 21,154

197 Ill. App. 641

World Publishing Company, Defendant in Error, v. Harry R. Fisher, Plaintiff in Error.

Gen. No. 21,154.

(Not to be reported in full.)

Abstract of the Decision.

1. Appeal and error, § 1691 ^* —when defendant by offering evidence accepts ruling that burden of proof is upon him to establish set-off. In an action to recover on a contract, where defendant pleads set-off, a ruling that under the pleadings in the case and the court rules applicable thereto plaintiff’s claim was admitted, and that the affirmative of the issue was with defendant on his set-off, is accepted by defendant by offering evidence to prove the set-off.

'2. Appeal and error, § 461 ^* —when question whether finding against weight of evidence and law not preserved for review. In an action to recover on a written contract, the question that the finding in a case tried without a jury is against the law is not preserved for review where no objection is pointed out, no motion made, the denial of which would preserve a question for review, and no propositions of law submitted calling for a construction of the contract or any other holding, there being in such case no ruling of the trial court on which to predicate error.

Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.

Heard in the Branch Appellate Court at the March term, 1915.

Affirmed.

Opinion filed February 1, 1916.

Statement of the Case.

Action by the World Publishing Company, a corporation, plaintiff, against Harry B. Fisher, defendant, to recover on a contract for advertising. To reverse a judgment for plaintiff for $537.07, defendant prosecutes this writ of error.

L. H. Craig, for plaintiff in error.

John A. McKeown, for defendant in error.

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same tonic and section number.

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Barnes

delivered the opinion of the court.

3. Appeal and error, § 594 ^* —when motion for new trial preserves no question for review. In an action tried without a jury, a motion for a new trial preserves no question for review.

4. Assumpsit, action of, § 41 ^* —when money voluntarily paid not recoverable. Money voluntarily paid with full knowledge of all the facts and without fraud, duress or extortion cannot be recovered back although paid under a mistake of law.

5. Pleading, § 117 ^* —when offering evidence of set-off constitutes admission of terms of contract. In an action to recover on a written contract, where defendant pleads set-off, the act of defendant in offering evidence tending to prove his set-off involves a recognition of the terms of the contract.

6. Appeal and error, § 578 ^* —when lack of exception to judgment does not prevent consideration of sufficiency of evidence. The absence of an exception to a judgment, in a trial without a jury, does not preclude consideration of the sufficiency of the evidence to sustain it.