Stewart v. Smith

Decision Date30 April 1862
Citation18 Peck 397,28 Ill. 397,1862 WL 3331
PartiesGEORGE STEWART et al., Plaintiffs in Error,v.WILLIAM A. SMITH, Defendant in Error.
CourtIllinois Supreme Court

28 Ill. 397
1862 WL 3331 (Ill.)
18 Peck (IL) 397

GEORGE STEWART et al., Plaintiffs in Error,
v.
WILLIAM A. SMITH, Defendant in Error.

Supreme Court of Illinois.

April Term, 1862.


ERROR TO THE SUPERIOR COURT OF CHICAGO.

An instrument which recites, “Received from teams in our pork house, etc., two hundred and eighty hogs, weighing, etc., the product of which we promise to deliver to the order of A B, indorsed hereon,” is negotiable under our statute, and the assignee can maintain a suit in his own name for the recovery of the product.

An acknowledgment of indebtedness in the simplest form, is all the statute requires, to give it the character of negotiability.

No consideration need be averred or proved, in an action on such a writing; unless the consideration is put in issue by plea. If no time of payment is specified, it becomes payable on demand; if made for the delivery of property, demand must be averred and proved.

The meaning of the word “product” in an investment like the above, may be proved orally, as having a local meaning.

All notes payable on demand, are not treated as over-due, until payment has been demanded and refused.

An indorsement without date, is presumed to have been made at the date of the instrument.

The presumption that a note past due is negotiated at the peril of the indorsee, does not attach to the indorsee of a note payable on demand in full force; whether the holder is to be subjected to this presumption, is a question of law, to be determined by the circumstances of each case.

The maker of such an instrument cannot show the state of accounts between himself and the payee, at a date subsequent to the real date of the indorsement, unless the indorsee had notice of the equities of the maker.

THE defendant in error brought his action against the plaintiffs in error in the Supreme Court of Chicago, and filed his declaration, containing three counts.

The first count states, that defendants (below) received, January 21, 1859, into their pork house, 280 hogs, weighing 45,545 pounds, from Stevens & Brother, the product of which they, the defendants, by their certain instrument in writing, then and there made and delivered to said Stevens & Brother, undertook and promised to deliver to the order of said Stevens & Brother, indorsed on said writing, and which instrument in writing is in the words and figures following:

[28 Ill. 398]

“CHICAGO, 21st January, 1859.

Received from teams in our pork house, No. 114 West Harrison street, 280 hogs, weighing 45,545 pounds, the product of which we promise to deliver to the order of Messrs. Stevens & Brother indorsed hereon.

G. & J. STEWART.”

And avers that Stevens & Brother, afterwards, to wit, at Chicago aforesaid, for value received, indorsed and negotiated said instrument, and the same was afterwards, in due course of business, for value received, delivered to the plaintiff (below), by means whereof, said plaintiff became the legal holder and owner thereof; that by said indorsement Stevens & Brother ordered defendants to deliver, and the defendants by their said instrument in writing, undertook and promised to deliver, the product of said hogs to the plaintiff whenever they should be afterwards thereunto requested; by means whereof, and by force of the statute in such case made and provided, defendants became liable to deliver to plaintiff the product of said hogs on demand, at, etc.; that the product of said hogs was large, to wit, 560 hams, 560 shoulders, 560 sides, 280 heads, and 10,000 pounds of lard, which product was of great value, to wit, of $2,500; that plaintiff afterwards, on or about June 12, 1859, produced said writing so indorsed by said Stevens & Brother, and so held by plaintiff, and presented to defendants, at, etc., and demanded the said product, to be then and there delivered to him, and that defendants then and there refused to deliver the same or any part thereof to him, to his damage $2,500. Wherefore, etc.

The second count is like the first, except that it avers a demand for the product on May 23, 1861, instead of June 12, 1859.

The third count states, that on January 21, 1859, defendants (below) made their certain instrument in writing, of that date, and delivered the same to Stevens & Bro., in and by which said instrument in writing, defendants, in consideration of the receipt by them of two hundred and eighty hogs, weighing 45,545 pounds, from teams, in their pork house, promised to deliver the product of said hogs to the order of Messrs. Stevens & Bro., which said writing is in the words and figures following (setting out same instrument

[28 Ill. 399]

as in the two previous counts,) and avers that Stevens & Bro., afterwards, on the day and year aforesaid, indorsed said instrument in writing, by which indorsement said Stevens & Bro. ordered said product of said hogs in said instrument in writing mentioned, to be delivered to the legal holder of said instrument; that afterwards, on the day and year aforesaid, at, etc., said Stevens & Bro. negotiated said instrument and passed the same out of their possession, and afterwards, on the_______day of______, 1859, at, etc., said instrument was sold and delivered to plaintiff; by means whereof, and by force of the statute, etc., defendants became liable, and by said instrument they undertook and promised to deliver to plaintiff said product of said hogs, on demand of said plaintiff, according to the tenor and effect of said instrument and the indorsement aforesaid; that there was a large product of said hogs, and of great value, to wit, of $2,500; that afterwards, on May 23, 1861, plaintiff being the legal holder of said instrument, produced the same indorsed as aforesaid, and with the following order written immediately above the signature of said Stevens & Bro., across the back of said instrument, to wit: “Deliver to the order of William A Smith,”...

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24 cases
  • Gossard v. Gossard
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • April 27, 1945
    ... ...         However, we do not regard the general rule as applicable in this case. In Stewart v. Smith, 28 Ill. 397, 407, the court held: "When the instrument is for the delivery of property, a demand before suit must be alleged and proved." ... ...
  • D. S. Pate Lumber. Co. v. Weathers
    • United States
    • Mississippi Supreme Court
    • March 6, 1933
    ... ... We ... fully recognize that as a factor we could not appoint a ... sub-agent ... Jones ... v. Sargent, 45 Miss. 337; Smith v. Jefferson Bank ... (Mo.), 97 S.W. 247 ... "If ... there is a well-established custom in the neighborhood with ... respect to the ... Ablon, 169 Ill.App. 633; Canning ... Co. v. Brokerage Co. 213 Ill. 561; Steidtmann v ... Joseph Lay Co., 84 N.E. 641, 234 Ill. 84; Stewart v ... Smith, 28 Ill. 397; J. E. Smith & Co. v. Russell ... Lumber Co., [167 Miss. 233] 72 A. 579; New England Box ... Co. v. Flint (N. H.), 90 ... ...
  • Wilson v. Stark
    • United States
    • Mississippi Supreme Court
    • April 25, 1927
    ... ... (4 Boyce) 286, 88 A. 465; ... Aspen Bank v. Mineral Co., 17 Colo.App ... 452, 68 P. 981; Tomlinson Co. v. Kinsella, ... 31 Conn. 268; Stewart v. Smith, 28 Ill ... 397; Nott v. Bank, 51 La. Ann. 871, 25 So ... 475; Parker v. Tuttle, 44 Me. 459; [146 ... Miss. 504] Gregg v. Bank, 87 Ind ... ...
  • Daniel v. Pappas
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • December 13, 1926
    ... ... It therefore presented a mixed question of law and fact for the determination of the jury under proper instructions. Stewart v. Sonneborn, 98 U. S. 187, 194, 25 L. Ed. 116; Sanders v. Palmer (C. C. A. 2) 55 F. 217; L. Bucki & Son Lbr. Co. v. Atlantic Lbr. Co. (C. C. A. 5) ... Brooks, 25 Pa. 210; `fancy goods, and Yankee notion store,' Barnum v. Insurance Co., 97 N. Y. 188; `product,' Stewart v. Smith, 28 Ill. 397; `outstanding accounts,' McCulsky v. Klosterman, 20 Or. 108, 25 P. 366, 10 L. R. A. 785; `furniture and fixtures,' Brody v. Chittenden, ... ...
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