Keator Lumber Company v. Thompson

STATEMENT BY MR. JUSTICE HARLAN.

Benjamin F. Thompson and Homer Root brought this action of assumpsit against the J. S. Keator Lumber Company for a balance alleged to be due them for cutting and hauling saw-logs, etc. The two main grounds of dispute were (1) whether the price for the work was limited by the contract in question to three dollars per thousand feet of saw-logs cut and delivered into the boom limits of the Black river, Wis., without extra charge, or whether the plaintiffs, in addition to the above price, were entitled to be paid for the driving or delivery of the logs into said boom limits; (2) whether the plaintiffs had not overcharged the defendant in the scaling and measurement of the logs.

With the declaration was filed an affidavit by plaintiffs under the statute of Illinois, providing that 'if the plaintiff in any suit upon a contract, expressed or implied, for the payment of money, shall file with his declaration an affidavit showing the nature of his demand and the amount due him from the defendant, after allowing to the defendant all his just credits, deductions, and set-offs, if any, he shall be entitled to judgment as in case of default, unless the defendant, or his agent or attorney if the defendant is a resident of the county in which the suit is brought, shall file with his plea an affidavit stating that he verily believes he has a good defense to said suit upon the merits to the whole or a portion of the plaintiff's demand, and, if a portion, specifying the amount, (according to the best of his knowledge and belief,)' etc. 2 Starr & C. St. Ill. p. 1801, par. 37, § 36.

The defendant filed a plea in abatement, and, subsequently, pleas of non assumpsit and set-off; the latter being for an amount exceeding that sued for by the plaintiff. With these pleas the defendant filed an affidavit of merits in conformity with the above statute.

The parties by written stipulation waived a jury, and agreed that the case be set for trial any day not earlier than March 28, 1888. Under this stipulation the plaintiffs had it set for trial on the day just named. The defendant on that day requested a postponement of the trial until the arrival of its Wisconsin counsel, who had had sole charge of the preparation of the defense, and also because of the absence of its principal witness. The court ruled that, unless the defendant showed legal grounds for a continuance, the trial should proceed forthwith. The defendant then entered a motion for continuance, based upon affidavit as to what the absent witness would state. The plaintiffs offering to admit upon the trial that the witness, if present, would testify as set forth in the affidavit, the court overruled the motion for continuance, and held that the trial must proceed forthwith. To this action of the court the defendant excepted. Thereupon the trial was commenced on the 28th of March, 1888, in the absence of the defendant's Wisconsin counsel, who, however, arrived before the conclusion of the trial, which continued during the 29th and 30th of March. On the last-named day, but before the trial was concluded, the plaintiffs, without notice to the defendant or its attorney, and without obtaining leave from the court, filed with the clerk replications to the defendant's pleas.

On March 31, 1888, the court made a general finding of the issues for the plaintiffs, and assessed their damages at $15,568.99, for which amount judgment was entered against the defendant. To this judgment the defendant excepted on the ground that it was excessive in amount.

J. K. Edsall, for plaintiff in error.

John S. Miller and James O'Neill, for defendants in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.