Betts v. Francis, 1 Ill. 165, 1 Breese 165 (1826)

June 1826 · Illinois Supreme Court

1 Ill. 165, 1 Breese 165

Josiah T. Betts, and Samuel Smith, adm’s of Michael Jones, dec’d, Plaintiffs in Error, v. Jesse Francis and Mary Ann his Wife, and Finley Rippy, by W. C. Greenup, his Guardian, Defendants in Error.

ERROR TO RANDOLPH.

The words, “ and the plaintiff doth the like,” can not be taken as a traverse of a plea of payment.

A plea of payment is a good plea in an action of assumpsit, and without it evidence of counter demands can not be received.

This was an action of assumpsit for money had and received, &c., brought by the defendants in error, as administrators of M. Jones, deceased. The defendants below pleaded non assumpsit, and payment, without concluding the plea with a verification, simply stating that the intestate in his life time had fully paid and satisfied, &c. Issue was joined upon the first plea, and to the plea of payment the plaintiffs added a similiter. Jury, and verdict and judgment for the plaintiffs below. To reverse that judgment a writ of error was prosecuted to this court.

T. Reynolds, for plaintiffs in error.

Stcvrr, for defendants in error.

Opinion of the Court by

Justice Lockwood.

Several errors have been assigned in this cause which do not appear to merit consideration, except the fourth, which is, “ That no issue was joined on the plea of payment.” The words, “ and the plaintiff doth the like,” can not be taken as a traverse of a plea of payment. 1 Littell’s Rep., 64.

A plea of- payment is a good plea in an action of assumpsit, in order to enable the defendants to set off any demand they may have against the plaintiffs ; and without such a plea, evidence of counter demands could not be received.

From the record, this court cannot intend that the defendants were permitted to give evidence under the plea of payment. The judgment must therefore be reversed with costs, and the causo remanded with permission to the parties to amend their pleadings in the court below. ⁽¹⁾

Judgment reversed.

(1) Although never expressly overruled by our court, yet at this time this decision can hardly be sustained. That a plea of payment is a good plea is true; but that evidence of payment could not be given under the general issue is, we think, incorrect. In Crews v. Bleakley, 16 Ill., 21, the court said that evidence tending to prove payment may be given under the general issue. And this is now the settled doctrine, 2 Greenl. Ev., p. 423, sec., 516.

We apprehend the court was also in error in saying, “Brom the record, tins court can not intend that the defendants wore permitted to give evidence under the plea of payment.” Because the plaintiff had failed to reply to the plea, the defendants could not be prejudiced thereby. If the parties go to trial without filing a replication, it will be cured by the verdict. See note to Brazzle et al. v. Usher, ante, p. 35, whore the authorities are collected on this subject. See also Parmelee et al. v. Fischer, 22 Ill., 212. Stevenson v. Sherwood, id., 238.