Wilson v. Baillargeon Interior Building Co.

Appellate Court of Illinois

Wilson v. Baillargeon Interior Building Co.

54 Ill. App. 250, 1894 Ill. App. LEXIS 86

CourtAppellate Court of Illinois

DecidedMarch 26, 1894

StatusPublished

Cited by1 cases

This text of 54 Ill. App. 250 (Wilson v. Baillargeon Interior Building Co.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Wilson v. Baillargeon Interior Building Co., 54 Ill. App. 250, 1894 Ill. App. LEXIS 86 (Ill. Ct. App. 1894).

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Opinion

Mr. Justice Gary

delivered the opinion of the Court.

The clerk of the Circuit Court has certified a complete transcript of the record below, and in it is no plea; it must be taken as true that no plea was ever in the case; and that, notwithstanding that the judgment entry says “ issues being joined,” there never was an issue. But if there had been, the judgment could not be sustained. The declaration shows no cause of action, and that is an objection always open to the defendant when he brings a case into a court of review and assigns it as error. Chi., Mil. & St. Paul Ry. v. Hoyt, 50 Ill. App. 583; Chi. & E. I. R. R. v. Hines, 132 Ill. 161.

We have often said, citing many authorities, that averring, without stating facts from which the law will imply, the duty, is useless. Funk v. Piper, 50 Ill. App. 163. And after verdict, where issue has in terms been joined on the allegation of duty, the objection avails in arrest of judgment. Seymour v. Maddox, 16 Q. B. 71; E. C. L. 326.

How, here it is averred that the defendant in error was a building contractor; had furnished a large amount of materials for a building; that the plaintiffs in error were the architects; that it was their duty to issue architect’s certificates, which duty they maliciously refused to perform. ¡No statement in any form from which any inference can arise that between the owner and contractor there was a contract providing for certificates, and that the architects had accepted a position by which they assumed the performance of such a duty.

It is useless to consider other errors assigned. The declaration is bad, and the judgment is reversed and the cause remanded.

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Mr. Justice Gary

delivered the opinion of the Court.

The clerk of the Circuit Court has certified a complete transcript of the record below, and in it is no plea; it must be taken as true that no plea was ever in the case; and that, notwithstanding that the judgment entry says “ issues being joined,” there never was an issue. But if there had been, the judgment could not be sustained. The declaration shows no cause of action, and that is an objection always open to the defendant when he brings a case into a court of review and assigns it as error. Chi., Mil. & St. Paul Ry. v. Hoyt, 50 Ill. App. 583; Chi. & E. I. R. R. v. Hines, 132 Ill. 161.

We have often said, citing many authorities, that averring, without stating facts from which the law will imply, the duty, is useless. Funk v. Piper, 50 Ill. App. 163. And after verdict, where issue has in terms been joined on the allegation of duty, the objection avails in arrest of judgment. Seymour v. Maddox, 16 Q. B. 71; E. C. L. 326.

How, here it is averred that the defendant in error was a building contractor; had furnished a large amount of materials for a building; that the plaintiffs in error were the architects; that it was their duty to issue architect’s certificates, which duty they maliciously refused to perform. ¡No statement in any form from which any inference can arise that between the owner and contractor there was a contract providing for certificates, and that the architects had accepted a position by which they assumed the performance of such a duty.

It is useless to consider other errors assigned. The declaration is bad, and the judgment is reversed and the cause remanded.

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54 Ill. App. 250, 1894 Ill. App. LEXIS 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-baillargeon-interior-building-co-illappct-1894.

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