Breese, J.
This was an action on the case for negligence, and a verdict for the plaintiff The declaration contains three counts, and the questions presented for our decision are, as to the sufficiency of the first count, and whether the evidence on the trial was sufficient to support the action, with a further question arising upon the instructions given for the plaintiff, and on those asked by the defendant and refused.
The defendant put in a general demurrer to the first count, to which there was a joinder, and at the same time pleaded to all the counts, the general issue.
On the principles of correct pleading, the plea of the general issue is a waiver of a demurrer, and might have been so regarded by the court. Cobb v. Ingalls, Breese, 2nd ed., 233; Beer v. Philips, ib. 44; Buckmaster v. Grundy, 1 Scam. 382. It was not, however, so regarded, but a decision was had, overruling the demurrer. On the trial, a motion was made by the defendant to instruct the jury to disregard that count as faulty, which the court refused.
It is now assigned for error, the overruling the demurrer, and refusing to instruct the jury to disregard the first count.
After the decision upon the demurrer, adjudging the count to be good, it could hardly be expected the court would stultify itself by giving an instruction to the jury to disregard that count. The law of the court was settled by the judgment on the demurrer, and the defendant could not ask this instruction of the court.
It is a settled principle, that after a judgment on demurrer, there can be no motion in arrest of judgment for any exception that might have been taken, on arguing the demurrer. 2 Tidd’s Practice, 917. A motion to instruct the jury as proposed, is in the nature of a motion in arrest of judgment, striking at the sufficiency of the alleged cause of action, and therefore such motion could not be allowed. Frink v. Schroyer, 18 Ill. 419. If the defendant deemed his demurrer well taken, he should have abided by it, and not tendered an issue on the facts. By abandoning the demurrer, and pleading to the whole declaration, he admitted its sufficiency, (Russell v. Whiteside, 4 Scam. 8), and cannot now assign the decision upon it as error.
But is the first count defective ? We have examined it with great care, and are of opinion that it is good in form and substance. After stating the plaintiff’s ownership of a certain money draft, accepted by Fay & Co., of Chicago, and payable at their office in that city, the count avers that on the eighth day of August, 1861, at, etc., he had retained and employed the defendant to collect this draft for him, for a reasonable commission and reward to be paid him, which retainer and employment the defendant then accepted—it is then alleged, that defendant accepted the draft for collection,, on this retainer, and then avers:
“ And thereupon it became and was the duty ofthé said de-; fendant, by reason of said retainer and employment, as aforesaid, to use all reasonable care and diligence that the said draft, so indorsed and accepted, as aforesaid, should be presented on the day the same became due, according to the tenor and effect of said draft, and said acceptance thereof, to the said Fay & Co., at their office in the said city of Chicago, for payment thereof in par funds, according to the tenor and effect of said draft, said indorsements, and said acceptance.”
“ Yet the defendant, not regarding his said duty, but contriving, etc., did not use reasonable care and diligence that the draft should be presented on the day it became due, according to its tenor and effect and the acceptance thereof, to said Fay & Co., at their office in Chicago, for payment thereof in par funds, according to such tenor and effect, and said indorsements and acceptance, but wholly neglected,” etc._
We can discover no substantial defect, either in the averment of the duty, or in the breach of the duty. A motion in arrest of judgment could not prevail against such averments as are here found. The count alleges a contract to be performed on a sufficient consideration, and a duty arising thereupon, and a breach of that duty, which is sufficient to warrant a verdict for damages, nominal at least.
The averment that the plaintiff had retained and employed the defendant to collect the draft, fora commission and reward to be paid to him, followed by the averment of his acceptance of the draft for the purposes of collection, in pursuance of such retainer and employment, is a sufficient statement of the contract, the breach of which is the subject-matter of the complaint. By the retainer and acceptance of the draft, a duty arose to deal with it according to the contract, and the law will imply a promise to perform the duty, and give an action for non-performance.
In the case of Streeter v. Horlock, 8 Eng. C. L. Rep. 390, it was said that whenever an order is given, previously to the delivery of goods, to a carrier or other bailee, to deal with them, when delivered, in a particular manner, to which he assents, and afterwards the goods are delivered to him accordingly, a duty arises on his part, upon receipt by him of the goods, to deal with them according to the order previously given and assented to ; and the law infers an implied promise by him to perform such duty. Other cases of a like nature might be referred to, all going to show, where a duty is created by contract, an action will lie for its breach, and in pleading, it is sufficient to state only so much of the contract the breach of which is complained of. 1 Saund. on Pl. and Ev. 200.
The objection made by the appellant, therefore, that this count is bad, because nothing is averred in it from which the duty could arise on the part of the defendant to present the draft at any particular place for payment in any particular kind of funds, is not, we think, well taken. The averment of the retainer and employment, on a consideration and reward to be paid, and the acceptance of the draft for the purpose of collection, created the duty, and bound the party to present it at the place indicated, in proper time, and to receive the kind of funds in which it was made payable, and this, too, if the undertaking was gratuitous. Coggs v. Bernard, 2 Raym. 919. The duty was thus created, and to this -extent.
It is further urged by the appellant, that inasmuch as this action is brought for a breach of duty, arising out of contract, the law requires the contract itself to be set out and proved with the same accuracy and certainty as if the suit had been founded on the contract directly. The law means simply, that the contract, out of which the duty arose, must be stated correctly in substance—not literally. Any essential variance would be as fatal as in a declaration on the contract itself—as fatal in an action ex delicto, as in an action in form ex contractu. 1 Ch. Pl., p. 384. We have seen in what terms the contract is stated in the first count. The other counts are quite as full and particular as the first, setting out the retainer and employment—the acceptance of the draft for collection for a certain compensation and reward, and the failure to present the draft for payment on the day it fell due, and the consequent loss of the proceeds by the insolvency of the drawees and accepters.
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Breese, J.
This was an action on the case for negligence, and a verdict for the plaintiff The declaration contains three counts, and the questions presented for our decision are, as to the sufficiency of the first count, and whether the evidence on the trial was sufficient to support the action, with a further question arising upon the instructions given for the plaintiff, and on those asked by the defendant and refused.
The defendant put in a general demurrer to the first count, to which there was a joinder, and at the same time pleaded to all the counts, the general issue.
On the principles of correct pleading, the plea of the general issue is a waiver of a demurrer, and might have been so regarded by the court. Cobb v. Ingalls, Breese, 2nd ed., 233; Beer v. Philips, ib. 44; Buckmaster v. Grundy, 1 Scam. 382. It was not, however, so regarded, but a decision was had, overruling the demurrer. On the trial, a motion was made by the defendant to instruct the jury to disregard that count as faulty, which the court refused.
It is now assigned for error, the overruling the demurrer, and refusing to instruct the jury to disregard the first count.
After the decision upon the demurrer, adjudging the count to be good, it could hardly be expected the court would stultify itself by giving an instruction to the jury to disregard that count. The law of the court was settled by the judgment on the demurrer, and the defendant could not ask this instruction of the court.
It is a settled principle, that after a judgment on demurrer, there can be no motion in arrest of judgment for any exception that might have been taken, on arguing the demurrer. 2 Tidd’s Practice, 917. A motion to instruct the jury as proposed, is in the nature of a motion in arrest of judgment, striking at the sufficiency of the alleged cause of action, and therefore such motion could not be allowed. Frink v. Schroyer, 18 Ill. 419. If the defendant deemed his demurrer well taken, he should have abided by it, and not tendered an issue on the facts. By abandoning the demurrer, and pleading to the whole declaration, he admitted its sufficiency, (Russell v. Whiteside, 4 Scam. 8), and cannot now assign the decision upon it as error.
But is the first count defective ? We have examined it with great care, and are of opinion that it is good in form and substance. After stating the plaintiff’s ownership of a certain money draft, accepted by Fay & Co., of Chicago, and payable at their office in that city, the count avers that on the eighth day of August, 1861, at, etc., he had retained and employed the defendant to collect this draft for him, for a reasonable commission and reward to be paid him, which retainer and employment the defendant then accepted—it is then alleged, that defendant accepted the draft for collection,, on this retainer, and then avers:
“ And thereupon it became and was the duty ofthé said de-; fendant, by reason of said retainer and employment, as aforesaid, to use all reasonable care and diligence that the said draft, so indorsed and accepted, as aforesaid, should be presented on the day the same became due, according to the tenor and effect of said draft, and said acceptance thereof, to the said Fay & Co., at their office in the said city of Chicago, for payment thereof in par funds, according to the tenor and effect of said draft, said indorsements, and said acceptance.”
“ Yet the defendant, not regarding his said duty, but contriving, etc., did not use reasonable care and diligence that the draft should be presented on the day it became due, according to its tenor and effect and the acceptance thereof, to said Fay & Co., at their office in Chicago, for payment thereof in par funds, according to such tenor and effect, and said indorsements and acceptance, but wholly neglected,” etc._
We can discover no substantial defect, either in the averment of the duty, or in the breach of the duty. A motion in arrest of judgment could not prevail against such averments as are here found. The count alleges a contract to be performed on a sufficient consideration, and a duty arising thereupon, and a breach of that duty, which is sufficient to warrant a verdict for damages, nominal at least.
The averment that the plaintiff had retained and employed the defendant to collect the draft, fora commission and reward to be paid to him, followed by the averment of his acceptance of the draft for the purposes of collection, in pursuance of such retainer and employment, is a sufficient statement of the contract, the breach of which is the subject-matter of the complaint. By the retainer and acceptance of the draft, a duty arose to deal with it according to the contract, and the law will imply a promise to perform the duty, and give an action for non-performance.
In the case of Streeter v. Horlock, 8 Eng. C. L. Rep. 390, it was said that whenever an order is given, previously to the delivery of goods, to a carrier or other bailee, to deal with them, when delivered, in a particular manner, to which he assents, and afterwards the goods are delivered to him accordingly, a duty arises on his part, upon receipt by him of the goods, to deal with them according to the order previously given and assented to ; and the law infers an implied promise by him to perform such duty. Other cases of a like nature might be referred to, all going to show, where a duty is created by contract, an action will lie for its breach, and in pleading, it is sufficient to state only so much of the contract the breach of which is complained of. 1 Saund. on Pl. and Ev. 200.
The objection made by the appellant, therefore, that this count is bad, because nothing is averred in it from which the duty could arise on the part of the defendant to present the draft at any particular place for payment in any particular kind of funds, is not, we think, well taken. The averment of the retainer and employment, on a consideration and reward to be paid, and the acceptance of the draft for the purpose of collection, created the duty, and bound the party to present it at the place indicated, in proper time, and to receive the kind of funds in which it was made payable, and this, too, if the undertaking was gratuitous. Coggs v. Bernard, 2 Raym. 919. The duty was thus created, and to this -extent.
It is further urged by the appellant, that inasmuch as this action is brought for a breach of duty, arising out of contract, the law requires the contract itself to be set out and proved with the same accuracy and certainty as if the suit had been founded on the contract directly. The law means simply, that the contract, out of which the duty arose, must be stated correctly in substance—not literally. Any essential variance would be as fatal as in a declaration on the contract itself—as fatal in an action ex delicto, as in an action in form ex contractu. 1 Ch. Pl., p. 384. We have seen in what terms the contract is stated in the first count. The other counts are quite as full and particular as the first, setting out the retainer and employment—the acceptance of the draft for collection for a certain compensation and reward, and the failure to present the draft for payment on the day it fell due, and the consequent loss of the proceeds by the insolvency of the drawees and accepters.
Now, what was the testimony in regard to the contract? Does it show a contract essentially different from the one set but in the declaration ? Has a variance been shown ?
The delivery of the draft to the agent of the express company, was made by Eugene Pinckney, the son of the plaintiff, who states that he asked the agent what he charged for taking a draft to Chicago, and collecting it. The reply was, if collected, the charge would be two or three'dollars; if not, about as small packages. He returned, got the draft and took it to the agent, who gave him a receipt for it. The draft was put in an envelope and indorsed, “ $1000—for collection,” in presence of the witness. The book of the company was produced on the trial, and this entry was found in it, made by the agent: “1 coll $1000. Pinckney, Fay & Co., Chi. P. O. R.” The letters indicating, as admitted, “Pay on return,” and the word “ coll,” collection. The envelope in which the draft was placed contained this indorsement on it, proved to have been made by the agent of the company:
AMERICAN EXPRESS COMPANY.
Money package, forwarded by American Express Co. From Chicago, Ill. Livingston, Fargo & Co., Proprietors, Buffalo, No. 9 and 11 West Seneca street.
§1,000. For collection. From J. G. Pinckney, Dixon, Ill. August 8, 1861. Fay & Co., Chicago, 111. Return proceeds on the inclosed with this envelope without delay, well sealed with wax. In the absence of notary, and at offices where notary cannot be found, agent will act as such, and in cases of non-payment, give notice to indorsers by mail, keeping a copy of the same. N. B.— Agents must observe the above instructions strictly in every instance. Due 14—17.
REMARKS.
“ Cannot collect; have held on promises that have turned out lies.”
The indorsement of date when due, “14—17,” and the “ remarks,” the agent stated, were not in his handwriting.
There was also produced on the trial, a paper, which the agent stated was a copy of the receipt he had given for the draft—the original having been destroyed. Omitting the printed advertisement on the margin, as having no bearing on the case, the paper was as follows:
AMERICAN EXPRESS COMPANY,
Dixon, August 8th, 1861.
Received of J. G. Pinckney, one dft. for collection, said to contain -, drawn by S. B. Parkhurst on Fay & Co., valued at one thousand dollars, and marked Fay & Co., Chicago, Ill., which we undertake to forward to Chicago, Ill., only perils of navigation excepted. And it is hereby expressly agreed, that said American Express Co. are not to be held liable for any loss or damage, except as forwarders only; nor for any loss or damage of any box, package or thing for over §160, unless the just and true value thereof is herein stated; nor for any loss or damage by fire; nor upon any property or thiug unless properly packed and secured for transportation; nor upon fragile fabrics unless so marked upon the packages containing the same; nor upon any fabrics consisting of or contained in glass.
For the proprietors,
P. O. R. H. 0. SNYDER, Agent.
This receipt, except the written portions of it, is a printed package receipt, and was used because the agent had no blank collection receipts in the office. It is all printed, except the place and date, the name “ J. Gr. Pinckney,” and the words, “ one dft. for collection, drawn by ti. B. Parkhurst on Fay & Co.—one thousand—Fay & Co., Chicago, Ill.—Chicago, Ill.— H. C. Snyder—P. O. R.” As applied to the carrying and collection of a money draft, the printed portion is mere non sense, unless it be construed to mean that the limit of the liability as forwarder was only designed to apply to the carriage of the draft, and its proceeds when collected. This form was used by the agent by accident, with no de-' sign, as is very evident, of limiting the responsibility of the company to the mere forwarding of the draft, as in the case of a package of goods. It is distinctly agreed in writing, that the company should collect the draft—it was received for that purpose. The principle applicable in all such cases, is, that a writing must be construed according to the clear intent of the parties, if that can be collected from the face of the instrument. Giving it the interpretation we think it should have, it is made sensible and consistent. " But there is another principle of law applicable. In a case where the agreement is partly written and in part printed, the preference is always given to the written part. What is printed, is intended to apply to large classes of contracts, and not to any one exclusively; the blanks are left purposely, that the special statements or provisions should be inserted, which belong to the particular contract, and not to others, and thus to discriminate this from others. So Lord Ellenborough held, in the case of Robertson and Thomasson v. French, 4 East, 360, when he said, that words superadded in writing, are entitled, if there should be any reasonable doubt upon the sense and meaning of the whole, to have a greater effect attributed to them, than to the printed words, inasmuch as the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning, and the printed words are a general formula adapted equally to their case, and that of all other contracting parties, upon similar occasions and subjects. And the same principle was recognized by Báron Parke, in the case of Alsager v. St. Katharine’s Dock Co., 14 Meeson & Welsby, 796, in which he admits, when effect is to be given to two parts of an agreement, partly written and in part printed, which are apparently inconsistent, the court will look at the written part of the contract as expressing the intention of the parties. The expressions introduced by the parties in the particular case, must be considered as conveying their real intention. This doctrine is recognized by Parsons in his treatise on Contracts, sec. 3, page 28, and may be considered as well settled. It certainly is good sense, and reasonable. So held also in the case of Weisser v. Maitland, 3 Sandford, 322.
The printed blank used in this case, is applicable to ordinary packages only, and the formula adapted to the cases in which it is properly used, must yield to the written contract of the parties, that the draft was received for collection, and must control the printed words, “ except as forwarders only,” and every other like printed stipulation. It was an agreement to collect the draft at Chicago, and so understood by the contracting parties, else why the indorsement on the envelope, “ §1,000, for collection—From J. G. Pinckney, Dixon, Ill.— August 8, 1861—Fay & Co., Chicago, Ill.”? And why the instructions indorsed on the same, “ Return proceeds on the inclosed with this envelope, without delay, well sealed with wax ” ? And why the entry in the books of the company ? All these formed a part of the written contract. To collect this draft was the sole and only object of the delivery to the company, and they undertook to collect it, but neglected so to do. By the carelessness of their agent, who mistook the date of its maturity, a loss of one thousand dollars has accrued to the plaintiff", and the company attempts to shelter itself from responsibility, by a printed formula, applicable alone to a package of goods, repudiating their express contract to collect the draft, and return the proceeds. Mo excuse is offered for the neglect—no palliation of their gross negligence attempted, and public policy, as well as strict justice, requires that they should be held to a prompt compliance with all their obligations, and to the strictest performance of all their duties.
We are satisfied that the written portion of the receipt—the indorsement on the envelope, and the entry of the transaction in the books of the company, as they were all made at one time, are the contract, and they fully explain the nature of this contract, and that was to collect this draft. Though the business of a forwarder is very different from that of a collecting agent, yet when a forwarder undertakes to collect, as well as forward, he should be held to a strict accountability if he fails to collect. The case shows, the money could have been collected, if the draft had been presented to Fay & Co. at maturity. They were then able and willing to pay. By the negligence of the company, the plaintiff has lost his recourse on the indorsers, both of whom are proved to be responsible, and have abused a trust they held themselves out to the world as able and willing to perform, and ought not to avoid the payment of damages for their default.
We can perceive no objection to the manner in which the court disposed of the instructions, and see no error in the record. The judgment is therefore affirmed.
Caton, C. J.
I am unable to concur in this judgment. The paper called a receipt is the written contract between the parties, and it is as incompetent to alter or extend this by parol as any other written contract. This written contract defines and fixes the rights, duties and liabilities of the parties. If here was an undertaking to collect, there is an express agreement, that the defendants should be liable as forwarders only. Here is an express waiver of all claims to damages for neglecting to collect. There is no complaint that they did not forward faithfully, and I can find no principle upon which to rest a liability expressly waived by the contract, which was executed and delivered by the defendant, and accepted by the plaintiff, for the purpose of fixing and determining their rights and liabilities.
Judgment affirmed.