Bassett v. Heiens

• Decision Date: 28 October 1940
• Docket Number: Ag. No. 11.
• Citation: 30 N.E.2d 528,307 Ill.App. 426
• Parties: BASSETT v. HEIENS.
• Court: United States Appellate Court of Illinois

307 Ill.App. 426

30 N.E.2d 528

BASSETT

v.HEIENS.

Ag. No. 11.

Appellate Court of Illinois, Fourth District.

Oct. 28, 1940.

Appeal from Circuit Court, Madison County; Wm. P. Boynton, Judge.

Action by Hector Bassett against Garland Heiens on a note, wherein judgment by confession was entered. Subsequently a motion to set aside judgment and for leave to defend was allowed. Judgment was entered restoring the judgment by confession, and defendant appeals.

Reversed. Terry, Gueltig & Powell, of Edwardsville, for appellant.

Henry B. Eaton, of Edwardsville, for appellee.

STONE, Presiding Justice.

This suit was commenced by plaintiff-appellee, Hector Bassett, on August 31, 1937, at which time a judgment by confession was entered on a promissory note in the sum of $500 signed by defendant-appellant, Garland Heiens. Said note provided for six per cent interest and ten per cent attorney fees. Thereafter defendant-appellant appeared and filed his motion and affidavit to set aside the judgment and for leave to defend, upon the ground that said note was without any good consideration, and was obtained by duress. The court allowed the motion and ordered said motion and affidavit to stand as the pleading of defendant-appellant and granted plaintiff-appellee time to reply thereto. Such reply denied the duress, and denied that the defendant-appellant received no consideration on account of the alleged execution and delivery of said note, but did not specifically set forth the consideration for said note.

The case was tried before the Court, without a jury, and the Court found the issues for the plaintiff-appellee, and entered final judgment, restoring the judgment by confession previously entered in the sum of $550 and costs.

Principal errors relied upon for reversal by defendant-appellant are that the trial Court erred in denying the motion to exclude the evidence and find the issues for defendant-appellant; that the Court erred in finding the issues in favor of plaintiff-appellee; that the finding and judgment of the Court are contrary to the manifest weight of the evidence; that the court erred in admitting certain evidence for plaintiff-appellee over the objection of defendant-appellant; that there was no consideration for the note sued upon and that it was obtained by duress.

It was stipulated between the parties, that the plaintiff-appellee was the holder of a previous $500 note signed by William Heiens and Lydia M. Heiens, father and mother of the defendant-appellant; that the will of the father was duly probated and his widow appointed executrix; that plaintiff-appellee filed his claim in the Probate Court on account of said note, and that said claim was allowed and he received $78.52, about fifteen per cent of the claim, said estate being insolvent, and that thereafter at public sale, defendant-appellant bought the real estate of his father.

The testimony of the defendant-appellant, with reference to the duress so pleaded, was to the effect that he had several conversations with the plaintiff-appellee relative to the payment of the $500 alleged to be owed by the father's estate and that on July 28, 1937, he went to the Laclede Steel Company, where he was employed and where the son of plaintiff-appellee, Clyde Bassett, was also employed as watchman. He testified that he was there accosted by Clyde Bassett and his father, the plaintiff-appellee, and was told by the former that if he did not sign a note in the sum of $500 he would see that he lost his job at the plant, said Clyde Bassett at the same time shaking his fist in his face, and that he then and there because of such threats signed the note in question.

This was denied by Clyde Bassett and plaintiff-appellee. The defense of duress was an affirmative defense and the burden of proof was upon defendant-appellant. Commercial State Bank of Forreston v. Folkerts, 200 Ill.App. 385. We are not constrained to hold under this state of the record that duress was proven.

However the defense of want of consideration presents a much more serious question for the consideration of this court. Apparently the only consideration for the note claimed by the holder himself was the old indebtedness of the father of the defendant-appellant. Upon the witness stand he testified on direct examination that the note was given for money loaned the father before he died. On cross-examination he testified in substance, that the note was given for the $500 loaned the father. Further, that he did not claim to have ever given any money to Garland Heiens and that there was no other transaction between him and Heiens on account of this note, except the money that his father owed. This debt of the father could not be a valid consideration for the note sued upon. At the time said note was signed the estate of the father had been settled, the assets exhausted, and the estate declared insolvent. The indebtedness of the father was no longer in existence. There was no well founded or disputed claim to compromise. This was not the personal obligation of Garland Heiens. When a debt is incurred and after the incurring of the same a third party promises to pay or guarantee it, some additional consideration is necessary to support such promise. Anderson v. Norvill, 10 Ill.App. 240;Haven v. Chicago Sash, Door & Blind Co., 96 Ill.App. 92, 101;Scott v. Leaf River State Bank, 242 Ill.App. 268.

In the brief of plaintiff-appellee it is hinted that such additional consideration for said note was supplied by the action of the plaintiff-appellee in securing a loan for defendant-appellant, making it possible for him to purchase the farm home of his father, and in addition thereto, some agreement of the plaintiff-appellee to stay away...