Gans v. Stars, 209 Ill. App. 400 (1918)

Jan. 30, 1918 · Illinois Appellate Court · Gen. No. 23,202
209 Ill. App. 400
Edward Gans, Appellee, v. Lincoln Stars, corporation, et al., on appeal of Lincoln Stars, Appellant

Edward Gans, Appellee, v. Lincoln Stars, corporation, et al., on appeal of Lincoln Stars, Appellant.

Gen. No. 23,202. (Not to be reported in full.)

Abstract of the Decision.

1. Evidence, § 122 * —when copy of contract admissible as secondary evidence. In an action to recover for services alleged to have been rendered under a contract, where, on the hearing, on a motion by plaintiff to order defendant to produce the original con*401tract at the trial defendant’s counsel states in open court that the original document is not in defendant’s possession and that he denies that it ever existed, plaintiff may, on the trial, introduce a copy of the alleged agreement as secondary evidence thereof.

*400Appeal from the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding.

Heard in the Branch Appellate Court at the March term, 1917.

Affirmed.

Opinion filed January 30, 1918.

Rehearing denied February 13, 1918.

Statement of the Case.

Attachment by Edward Cans, plaintiff, against Lincoln Stars, a corporation, defendant, to recover under an alleged contract with defendant, for an amount claimed to be due for services rendered. From a judgment for plaintiff for $53.53 and costs, defendant appeals.

Laurence M. Fine and Edward Drobnis, for appellant.

Ellis & Westbrooks, for appellee.

Mr. Justice Thomson

delivered the opinion of the court.

*4012. Municipal Court of Chicago, § 13 * —non-necessity of formal pleadings. In cases of the fourth class in the Municipal Court of Chicago, while the statement of claim filed must set forth a cause of action, formal pleadings are not necessary.

3. " Municipal Court of Chicago, § 13a*—what is rule as to variance in actions of fourth class. Cases of the fourth class in the Municipal Court of Chicago are governed, as to variance, by the rule, which controls in actions before justices of the peace, that the action is what the proof makes it.

4. Municipal Court of Chicago, § 13a*—when variance in action of fourth class does not prevent recovery. Even though the statement of claim in a fourth class case in the Municipal Court of Chicago declares on a written contract while the proof discloses an oral contract or one partly oral and partly written, plaintiff may recover if the statement sets forth a good cause of action.

5. Attachment, § 246*—what is sufficient proof to sustain. Where an affidavit for attachment alleges two statutory grounds and defendant denies only one of them in its traverse, the ground not alleged is admitted and is sufficient to sustain a judgment for attachment.