Brand v. Whelan
Appellate Court of Illinois
Appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding. This was assumpsit brought hy William P. Whelan against Rudolph Brand. The declaration consists simply of the common money counts.
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Appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding. This was assumpsit brought hy William P. Whelan against Rudolph Brand. The declaration consists simply of the common money counts. A rule having been entered requiring the plaintiff to file a bill of particulars, he filed, in response to said rule, the following statement: “ The defendant promised that if the plaintiff would become the surety of one Dalton upon a lease executed hy the said Dalton to one John W. Smyth for the term commencing on the 1st day of August, 1882, and ending on tlio 30th day…
1Opinion of the CourtBailey, P. J.
It is claimed by the defendant that, as there was no replication to the plea of the Statute of Frauds, that plea stands admitted. It appears that the defendant askedfor no rule on the plaintiff to reply, nor prayed judgment against him for want of a replication, and made no objection to going to trial as the pleadings were. It is the well settled rule that proceeding to trial with an issue on one of the pleas not made up, is a waiver of a formal issue, and that the irregularity is cured by verdict. Strohm v. Hayes, 79 Ill. 41, and cases cited.
The suit, is brought to recover upon an alleged…
2Cases cited2 opinions
- Northrup v. JacksonNew York Supreme Court · 1834
- Runde v. RundeIllinois Supreme Court · 1871
3Cited by4 opinions
- Gansey v. OrrSupreme Court of Missouri · 1903
- St. Louis, Alton & Terre Haute Railroad v. BrownAppellate Court of Illinois · 1890
- Waterman v. ResseterAppellate Court of Illinois · 1892
- Adams & Westlake Co. v. WestlakeAppellate Court of Illinois · 1901