Pearce v. Pearce

Citations

• 67 Ill. 207

Syllabus

<p>1. Parties—nonjoinder of a co-defendant in action ex contractu. In an action ex contractu, the non-joinder of a co-defendant can he taken advantage of only by a plea in abatement. Therefore, in an action against a single defendant, to recover money loaned, it is erroneous to instruct the jury, that if the loan was made to the defendant and another jointly, and not jointly and severally, nor to the defendant alone, they must find for the defendant, where no plea in abatement is filed setting up such nonjoinder.</p> <p>2. Implied promise—in case of a loan. In a suit to recover money loaned, the court instructed the jury, that before they could find for the plaintiff, they must believe, from the evidence, that the plaintiff loaned the money to the defendant, and that the latter had promised to pay the plaintiff the same: Held, that the instruction went too far, as the jury probably understood it as requiring proof of an express promise, which was not necessary.</p>