Carter v. White, 32 Ill. 509 (1863)

Nov. 1863 · Illinois Supreme Court

32 Ill. 509

George W. Carter et al. v. Edward H. White.

1. Pleading — declaring in assumpsit or case. An action of assumpsit, so' called, is an action on the case, and is properly entitled in a declaration, an action of “trespass on the case.”

2. To determine whether the cause of action is for a tort or upon promises, resort must be had to the substance of the counts.

3. Presumption in favor the finding delow. Where the issues in a suit at law were tried by the court below, without the intervention of a jury, and the evidence is not preserved in a bill of exceptions, it will be intended, upon writ of error, that the court trying the cause had sufficient evidence before it to justify its finding.

Wbit ob Ebbob to the Circuit Court of Pulaski county; the Hon. Wesley Sloam, Judge, presiding.

TMs was a suit instituted in the corat below by Edward H. White against John W. Monahan and several others. In the commencement of the declaration it was stated that the defendants had been “ summoned to answer the said plaintiff of a plea of trespass on the case.” The summons also commanded the sheriff to summon the defendants to appear and answer the plaintiff “ of a plea of trespass on the case, to his damage,” etc.

'There were five counts in the declaration; the first and second made reference to a contract between the parties, but were entirely meaningless in their allegations; the three remaining counts were clearly in assumpsit, claiming damages for a breach of contract. Plea of the general issue was interposed by all the defendants, and notice attached .of special matter. The cause was tried before the court, without the intervention of a jury, and the issue found in favor of the plaintiff, and judgment accordingly against the defendants for the sum of §840. The evidence was not preserved in a bill of exceptions. The defendants bring the cause here for review upon writ of error. The only question arising upon the record is as to the character of the action; whether it is an action of trespass on the case upon promises, or in case, as for tort; and herein, of the distinguishing features of each.

Messrs. George S. Pidgeon and John Dougherty, for the plaintiffs in error.

Messrs. Wm. H. Green and S. P. Wheeler, for the defenddant in error.

Mr. Justice Breese

delivered the opinion of the Court:

The action of assumpsit, so called, is an action on the case, and is properly entitled an action of trespass on the case. To determine the cause of action, whether for a tort or on promises, we must look to the declaration. The first and second counts are very in artificially drawn, to say the least, and are meaningless. The third, fourth and fifth counts are counts in assumpsit.

The judgment is correctly entered against all the defendants, as appears by the amended record filed.

As there are no facts preserved by the bill of exceptions, we cannot determine whether the court, sitting as a jury, found correctly or not. We must intend the court had sufficient evidence before it to justify its finding, and we must affirm the judgment.

' Judgment affirmed.