Continental & Commercial Nat. Bank of Chicago v. Cobb
Decision Date | 27 November 1912 |
Docket Number | 996. |
Parties | CONTINENTAL & COMMERCIAL NAT. BANK OF CHICAGO v. COBB. |
Court | U.S. Court of Appeals — First Circuit |
Hollis R. Bailey, of Boston, Mass., and Abraham Meyer, of Chicago Ill. (Currier, Rollins, Young & Pillsbury, of Boston, Mass and Mayer, Meyer, Austrian & Platt, of Chicago, Ill., on the brief), for plaintiff in error.
Jeremiah Smith, Jr., of Boston, Mass. for defendant in error.
Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.
This is a suit at common law, in which jury trial was waived, upon the following contract:
John C. Cobb. (Seal.)'
The note to which this contract was collateral was as follows: '36000.00
Chicago, Ill., Sep. 14, 1905.'
'On demand after date we promise to pay 'the Commercial National Bank of Chicago,' or order thirty-six thousand dollars, at its office, for value received, with interest at the rate of five per cent. per annum, after date payable semi-annually, having deposited as collateral security for the payment thereof, and for the payment of any other liability or liabilities (due or to become due or that may hereafter be contracted) of the undersigned, or the guarantors or the endorsers hereon, or any of them, to said bank the following described property: 300 shs. Pfd. Stock Cobb Cocoa Co., two notes $10,000.00 each of Albert W. Cobb dated Dec. 15, 1897, due on demand both secured by trust deeds which we hereby give the said bank, or its attorney appointed for that purpose, or the holder hereof, authority to sell, all, or any part thereof, on the maturity of this note, or at any time thereafter, or before in the event of said securities depreciating in value, or on the maturity of any of the liabilities above mentioned, at public or private sale, at the discretion of said bank, or the holder hereof, without advertising or giving us any notice thereof, and to apply so much of the proceeds thereof, to the payment of this note and other obligations above mentioned, as may be necessary to pay the same, with all the interest due thereon, and also to the payment of all expenses, including reasonable attorney's fees and charges paid or incurred for making papers, attending and making the sale of said collateral security; and if the sale be public, or at broker's board, or be made by an attorney appointed as aforesaid, the holder of this note may purchase thereat, the same as any other person, and in case the proceeds of the sale of the said collateral shall not cover the principal, interest and expenses, we promise to pay the deficiency forthwith after such sale with interest at 7 per cent. per annum. And in case of an exchange of, or addition to, or substitution for the collateral above named, or any part thereof, the provisions of this note shall extend to such new or additional collateral. And we also authorize said bank, at the election of its president, cashier, or any officer thereof, at any time to apply any and all money it may have in our deposit account, or the deposit account of any of us, towards the payment of this note, or any of the obligations mentioned above, whether due or not.
Albert W. Cobb.
'Due
Chas. H. Lawrence.'
This note had on the back the following indorsements showing payments thereon, which were admitted and found by the court to be correct:
'$4500.00 Paid Oct. 13, 1905 also endorsed on $10000.00 note Albert W. Cobb secured by Englewood lots.
'$3500.00 Paid Nov. 1, 1905 also endorsed $1000.00 on $10000.00 note Albert W. Cobb secured by Englewood property & 2500.00 on 10000.00 note Albert W. Cobb, sec. by lot on Lake Forest Property.
'200.00 paid Dec. 3, 1905 also endorsed 200.00 on 10000.00 note Albert W. Cobb secured by Lake Forest Property
'2000.00 paid on this note April 6, 1906 and also endorsed on $10,000 note A. W. Cobb dated 12/15/1897
'2000.00 paid Apr. 19, 1906 also endorsed on 10,000.00 note A. W. Cobb dated 12/15/1897
'600.00 Paid June 11, 1906
'2500.00 Paid Sept. 16, 1907
'7715.00 Paid Jan. 18, 1909
' 60.00 Paid Jan. 18, 1909
Interest on within, paid to Mar. 14, 1906
Jan. 18, 1909 Interest on within paid to Mar. 14, 1909 $975
'The Commercial National Bank of Chicago, Ill.
'By N. R. Losch, Cashier.'
Both the contract and note were made in the state of Illinois, and, under the circumstances, are for the purposes of this case governed by the statutes of that state. The only statute in point is section 1 of the act of February 27, 1874 (Hurd's Revised Statutes, 1911, p. 2305), as follows:
Andrew R. Sheriff.'
The judgment of the District Court was for the defendant below, whom we name herein as the defendant, and thereupon the plaintiff below, whom we name herein as the plaintiff, sued out this writ of error. The main defense rests on the statute of Illinois, supplemented by the letter from Mr. Sheriff, which we have stated.
We will preface our discussion of the effect of that statute by observing that there...
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...relied on a case from the United States Court of Appeals for the First Circuit, Continental & Commercial Nat. Bank of Chicago v. Cobb, 200 F. 511 (1st Cir. 1912), interpreting section 1 of the Sureties Act as applying to guarantors. The appellate court therefore remanded the cause for furth......
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