Wolsey v. Price, 98 Ill. App. 503 (1901)

Nov. 26, 1901 · Illinois Appellate Court

98 Ill. App. 503

Charles S. Wolsey et al. v. Oscar J. Price.

1. Satisfaction — Procured by False Representations. — Where a person holding a claim against a married couple for which both are liable, is induced to satisfy his claim by the false representations of the husband, the wife, when suit is brought against both upon such claim, can not take advantage nor derive any benefit from a satisfaction so obtained.

Assumpsit, for services. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanaqh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.

Affirmed.

Opinion filed November 26, 1901.

Statement. — This was an action in assumpsit brought by appellee against appellants.

The pleadings in brief were as follows: Appellee, on December 2, 1896, filed a special count for services as physician, together with the common counts.

On December 29, 1897, he filed a special count for breach of warranty. Appellants had theretofore filed a plea of the general issue, and by stipulation that plea was to stand to the additional count. Two subsequent amendments were filed by appellee in respect to form and phraseology. Afterward, on January 29, 1900, on the opening of the trial herein it was verbally stipulated between the parties that there was no controversy in this suit as to the value of the service rendered, and that there was an account stated between the parties on or about August 1, 1893.

The evidence tends to show that appellee had been the family physician of appellants for a number of years prior to August 1, 1893, and that on or about that date an accounting was had and a balance struck amounting to $560, and in payment thereof appellant Charles $. Wolsey gave appellee a bond of the Staver and Abbott Manufacturing Company of the denomination of $500 and a check for the balance of the account, less accrued interest on the bond, which bond was tendered back to appellants. Appellee, as the interest matured thereon, collected the same to the amount of $96.27, until the failure of the Staver and Abbott Manufacturing Company, which occurred January 31,1896. Appellee then began this suit, and claimed upon the trial that he was induced to take the bond in payment of his account, by the false and fraudulent representations of Mr. Wolsey.

M. B. & F. S. Loomis, attorneys for appellants.'

Cunningham, Vogel & Cunningham, attorneys for appellee.

Mb. Justice Waterman

delivered the opinion of the court.

There was given upon the trial, evidence tending to show that appellee received the bond of the Staver and Abbott Manufacturing Company for $500, in satisfaction of his account against appellants for medical services, upon false representations made to him as to the character thereof by Mr. Wolsey.

The evidence was certainly such that the jury were warranted in finding that the claim of appellee in this regard was well founded. Appellant urges that the representations testified to were made entirely by Mr. Charles Wolsey and none of them by Mrs. Wolsey and that therefore neither the instructions given by the court nor the verdict of the jury can be justified.

The claim of appellee was for medical services rendered to the family, for which both Mr. and Mrs. Wolsey were liable to him.

If appellee was induced to satisfy such claim by the false and fraudulent representations of Mr. Wolsey, Mrs. Wolse}r can n'ot take advantage nor derive benefit from a satisfaction so obtained.

The suit was based upon a claim for medical services, with a special count setting forth the manner in which an attempt had been made to discharge the same.

The jury found, as the evidence certainly warranted, that the claim had not been discharged in any valid manner, that it still existed, and that therefore appellee was entitled to a judgment against Mr. and Mrs. Wolsey, to whom he had rendered, as was admitted, the services for which the judgment in this case was rendered.

The judgment of the Superior Court is affirmed.