Baldwin v. Killian

• Decision Date: 30 June 1872
• Citation: 63 Ill. 550,1872 WL 8246
• Parties: JAMES M. BALDWINv.AMOS KILLIAN.
• Court: Illinois Supreme Court

63 Ill. 550

1872 WL 8246 (Ill.)

JAMES M. BALDWIN

v.AMOS KILLIAN.

Supreme Court of Illinois.

June Term, 1872.

APPEAL from the Circuit Court of Clinton county; the Hon. SILAS L. BRYAN, Judge, presiding.

Messrs. CASEY & DWIGHT, for the appellant.

Messrs. BREESE & GRAY, for the appellee. Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of assumpsit, brought by appellant in the Clinton circuit court, against appellee, on a promissory note. It appears that appellee gave the note to one John Curtice, who indorsed it to appellant. It also appears the note was given for a patent right seeder, and the right to sell the same in certain named territory. Curtice was to furnish these seeders at Collins' Station, which was never done. No other consideration was received for the note. A plea of the failure of consideration was the defense interposed; and appellant insisted that he had purchased the note, and it was indorsed and delivered to him before its maturity, without notice of any defense.

On the trial, Gray testified that some time in November he saw the note, and it was not indorsed at that time; and appellee says he saw the note at the same time, and thinks it was not indorsed, but that he did not examine it carefully to ascertain. Warren, on the other hand, states that he was present, in August or September, before the note was due and at the time Curtice sold the note to appellant, and that he then indorsed and delivered it to appellant. Appellant also testifies to the same facts. On this testimony, the court instructed the jury:

“That if they believe, from the evidence, that the note sued on was given for the territorial right to sell Ingall's improved seeders in townships one and two north, range two west of the third principal meridian, Clinton county, Illinois, was assigned before it became due, and that four of the said Ingall's improved seeders, which said Ingall, by his said agent, John Curtice, was to furnish the said defendant, were never received by the said defendant, and also that said defendant never enjoyed any benefit from the same, they will find for the defendant.”

The eighth section of the chapter entitled “Negotiable Instruments” authorizes the maker to interpose any defense he has to the note when sued by an assignee after maturity; but the ninth section declares that such defense shall not be made to the note in the hands of an innocent assignee before maturity. This instruction is in the...