Miller v. McManis

Citations

• 57 Ill. 126

Syllabus

<p>1. Pleadings—stipulation—waiver of want of issues. Where the parties at the trial in the court below stipulated that either party might offer any legal evidence as to the actual state of accounts between them, on issues of fact made up in the.cause, so as to have a trial on the merits, without reference to questions as to the form of such pleadings, or form of action, or defense: Held, that it waived the demurrer to a portion of the pleas and dispensed with the necessity of having issues of fact formed on them. On the trial under this stipulation the court could admit all evidence that could have been under formal and well drawn pleas, and the court was not governed by the pleas on file.</p> <p>2. Evidence—bar of former judgment—different parties. In a suit betrveen two persons, a judgment between other parties than those to the action pending cau not be used as a bar to a recovery, nor can such a judgment between the same parties be so used unless the former suit was for the identical same cause of action, and the same breaches sued for in the action being tried.</p> <p>3. Plea of former recovery—evidence under. A plea of former recovery is not sustained by the record of a judgment on an agreement of a different date, nor is such evidence admissible because of the variance. Nor can the record of a judgment on an agreement entered into iu 1864, be read in evidence, under a plea of former recovery, to an action on contracts entered into in 1863 and 1866. This proof is variant and does not sustain the plea.</p> <p>4. Agreement—performance. Where parties agree upon the terms of a contract which is to be reduced to writing but never was, and the parties on one side avail themselves of the benefits of the proposition, and go on under this agreement as though it had been in writing, the parties acting under it, and receiving all the benefits of the agreement, can not be heard to say that it was understood between them that the contract was not to be binding unless redu