Tribune Co. v. McCarthy, 201 Ill. App. 586 (1916)

Oct. 30, 1916 · Illinois Appellate Court · Gen. No. 22,248

201 Ill. App. 586

The Tribune Company, Defendant in Error, v. K. T. McCarthy and M. E. Byrne, copartners, trading as McCarthy & Byrne, Plaintiffs in Error.

Gen. No. 22,248.

(Not to be reported in full.)

Abstract of the Decision.

1. Contracts, § 384 ^* —when evidence sufficient to show nonexistence of meritorious defense. In an action to recover for advertising, where the only question at issue was the amount due, and defendants claimed that certain payments made them had not been credited, a letter from defendants to plaintiff written after the maturity of the indebtedness sued on, in which defendants expressed appreciation of plaintiff’s forbearance, and promised payment as soon as the market would permit them to dispose of some of their real estate holdings, held to show that the defense was interposed from financial reasons, and not from any meritorious claim for unallowed credits.

Error to the Municipal Court of Chicago; the Hon. Samuel H. Tbude, Judge, presiding. Heard in this court at the March term, 1916.

Affirmed.

Opinion filed October 30, 1916.

Statement of the Case.

Action by the Tribune Company, a corporation, plaintiff, against K. T. McCarthy and M. E. Byrne, copartners, trading as McCarthy & Byrne, defendants, in the Municipal Court of Chicago, to recover for advertising. To reverse a judgment for plaintiff for $886.45, defendants prosecute this writ of error.

Adams, Crews, Bobb & Wescott, for plaintiffs in error.

Irwin R. Hazen and LeRoy V. Penwell, for defendant in error.

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

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

Mr. Justice Holdom

delivered the opinion oi the court.

2. Trial, § 204 ^* —when verdict for plaintiff should be directed. Where a defense is affirmative and defendants fail to maintain it, the court should instruct the jury to find for plaintiff.

3. Costs, § 73 ^* —when cost of additional abstract properly charged against appellant. Where the imperfections in an abstract filed by an appellant render it necessary for appellee to file an additional abstract, the expense of such additional abstract will be taxed as costs.