Belleville Sav. Bank v. Bornman

CourtSupreme Court of Illinois
Citation124 Ill. 200,16 N.E. 210
PartiesBELLEVILLE SAV. BANK v. BORNMAN et al.
Decision Date27 March 1888

124 Ill. 200
16 N.E. 210

BELLEVILLE SAV. BANK
v.
BORNMAN et al.

Supreme Court of Illinois.

March 27, 1888.


Error to appellate court, Fourth district.


[124 Ill. 203]

[16 N.E. 211]

Charles W. Thomas, for appellant.

[124 Ill. 201]This is an appeal from the judgment of the appellate court of the Fourth district, affirming the judgment of the St. Clair circuit court disallowing a claim presented by the Belleville Savings Bank against the estate of Conrad Bornman, deceased, which was heard in that court, by the court without a jury, on appeal from the probate court of that county. The claim filed in the probate court was evidenced by the following instrument:

‘$10,000.00.

OFFICE OF BELLEVILLE NAIL-MILL CO.

‘BELLEVILLE, ILLS., July 17, 1874.

‘Four months after date, pay to the order of Belleville Savings Bank ten thousand dollars, value received, and charge same to account of Belleville Nail-Mill Co.

CONRAD BORNMAN, Prest.

‘JAS. C. WAUGH, Secy.

To F. H. Pieper, Treas., Belleville, Illinois.’

[124 Ill. 202]It was shown upon the trial in the circuit court that, after the foregoing draft was executed by the Belleville Nail-Mill Company, Bornman wrote his name across the back of it, and handed it to F. N. Pieper, treasurer of said company, with instructions to inform the bank that it was not to be taken by the bank unless Edward Abend also placed his name upon the back of it. This Mr. Pieper did, and the bank, through its cashier, was fully notified of the condition interposed by Bornman to its acceptance by the bank prior to such acceptance. It also appears that Mr. Edward Abend, the person referred to by Bornman, was president of the bank, and with two of its directors composed the discount committee of plaintiff's bank, to whom this draft, in the regular course of business, would pass from the hands of the cashier before it was discounted. Shortly after the draft was delivered by Mr. Pieper to its cashier, the nail-mill company, through Mr. Pieper, paid to the bank four months' interest in advance, which was received by the bank. At the time of the making of this draft the bank held the draft of the Belleville Nail-Mill Company for a like amount, dated March 14, 1874, payable to the bank four months after its date, and guarantied on the back thereof by Conrad Bornman, James Waugh, and Edward Abend. Mr. Pieper testifies, and is substantially uncontradicted, that when he went to pay the discount he asked the cashier if the draft was taken on the conditions imposed by Mr. Bornman, and the cashier replied it was. He testifies: ‘Mr. Bornman was particular in telling me, after it passed the discount board, to ask him [the cashier] if the note had been so guarantied with Mr. Abend's name on the back of it;’ that he did so inquire of the cashier. At the time of paying the discount before mentioned, the draft of March 14, 1874, was stamped by the bank ‘Paid’ across its face, and delivered to Mr. Pieper, who, it appears, was treasurer of the drawer. Edward Abend did not, however, place his name on the back of the draft of July 17, 1874, but executed a separate paper. The draft not having been paid by the makers, was presented against the estate of Conrad Bornman, who died subsequent to the making of said draft, and his liability as indorser thereon insisted upon.

[124 Ill. 205]SHOPE, J., ( after stating the facts as above.)

When Conrad Bornman wrote his name as guarantor upon the draft of the Belleville Nail-Mill Company, of the date of July 17, 1874, he imposed as a condition to its acceptance by the plaintiff bank that Edward Abend should become his co-guarantor thereon, of which the bank had actual notice prior to its acceptance of the draft. Bornman had the right to impose this condition; and the delivery of the instrument, being conditional, created no liability until the condition was performed. It was competent to prove such condition, and non-compliance there with, by parol, not as tending to vary or alter the contract of guaranty, but for the purpose of showing that there had been no delivery thereof to plaintiff in error. The condition materially affecting, as it did, the liability of Bornman, and the draft not having been guarantied by Abend, so that he would become Bornman's co-guarantor thereon, and liable to contribute in payment of the draft, as required by the conditions thus imposed, the delivery of Bornman's

[16 N.E. 212]

contract of guaranty never became complete, and he was not, therefore, liable as guarantor upon the draft of July 17, 1874. Stricklin v. Cunningham, 58 Ill. 293;Knight v. Hurlbut, 74 Ill. 133;Rhode v. McLean, 101 Ill. 467;Lovett v. Adams, 3 Wend. 380;Hall v. Parker, 37 Mich. 590;Benton v. Martin, 52 N. Y. 570; Fletcher v. Austin, 11 Vt. 447; Edw. Bills, § 186.

It is, however, insisted that, if Bornman was not liable as guarantor upon the draft of July 17th,-that draft having been given in renewal of a like draft in all respects, except date, dated March 14, 1874, upon which Bornman was a guarantor,-the acceptance by the bank of the last draft, with Bornman's incomplete contract of guaranty thereof, did not extinguish his liability upon the former draft, and that plaintiff in error should in the county court have recovered upon that liability. The insistence is that, by the guaranty of Bornman of the March draft, he became liable to pay the draft if the drawer [124 Ill. 206]failed to pay at maturity; and the draft of July 17, 1874, being in renewal of the March draft, that such renewal was not a payment of the former draft, and that his liability as guarantor thereon was therefore not extinguished. The authorities are not uniform upon the question as to whether the acceptance of a new note or bill in renewal of another, upon the same consideration, without proof of the intention of the parties in making or accepting the same, should be held to be a payment of the original note or bill or not. Plaintiff in error contends that the presumption of law is that a note or draft taken in renewal of a former one is not a payment of the original note or draft, as between the parties; and in this is sustained by what is said to be the weight of authority. Edw. Bills, § 291; 2 Pars. Notes & B. 203. Mr. Parsons, however, says: ‘The general custom and understanding of the mercantile world would seem to demand that a new note given in renewal of an old one, which is taken up, as it is termed, should pay and cancel the old note for which it is given.’ He seems to find support, more or less direct, in many adjudicated cases. Nichol v. Bate, 10 Yerg. 429;Hill v. Bostick, Id. 410; Huse v. Alexander, 2 Metc. 157; Cornwall v. Gould, 4 Pick. 444;Slaymaker v. Gumdacker, 10 Serg. & R. 75;Alford v. Baker, 53 Ind. 279;Homes v. Smyth, 16 Me. 177; Skannel v. Taylor, 12 La. Ann. 773;Smith v. Harper, 5 Cal. 330. It will not be profitable to review the authorities relating to that question, or necessary to restate the rule of law upon that subject in this state. The decision of that question is not at all necessary to the solution of the questions involved in this case; nor does it necessarily arise in its determination, for, while there are decisions holding that the legal presumption arising from the renewal can be rebutted only by proof of a contrary express agreement of the parties, the decided weight of authority is, regardless of what the legal presumption arising from the mere fact of renewal is held to be, that, it being [124 Ill. 207]the proper subject-matter of contract, the intention with which the new note is accepted will control as to whether the original note or draft is paid and discharged by the acceptance of another in renewal of it or not; and that this may be shown by proof of an express agreement of the parties as to the effect of the renewal upon the indebtedness evidenced by former note or bill, or by proof of the attendant circumstances from which the intention of the parties can be inferred. Daniel, in his work on negotiable instruments, after referring to the authorities relating to the legal presumptions arising from the renewal of negotiable instruments, says, (section 1267:) ‘The presumptions of law which we have referred to are universally held to be open to rebuttal; and it is competent for the parties to show that the bill or note was, by express agreement, received in absolute payment and discharge of the precedent debt, or the contrary, or that there are facts and circumstances attendant upon the transaction from which an understanding and agreement might be inferred.’ So, in Pennsylvania, where it was held that the taking of a renewal note was not a satisfaction of the former bill or note, ‘unless it was so intended and accepted by the creditor,’

[16 N.E. 213]

it is said: ‘But, if so accepted, it is a satisfaction. The quo animo it was accepted is a matter of fact which the court cannot take to itself, and exclude the jury from a decision of. The intent may often he deduced from circumstances, though nothing positive was expressed.’ Hart v. Bollar, 15 Serg. R. 162. This undoubtedly is the rule of law in this state when the holding is in harmony with the rulings elsewhere. In Yates v. Valentine, 71 Ill. 644, it is said: ‘Where a subsequent promissory note is given for the same consideration as a former one, it is a question of fact for the determination of the jury whether the former note is thereby satisfied. If the subsequent note was executed and accepted by the respective parties for that purpose, the satisfaction is complete.’ See, also, Morrison v. Smith, 81 Ill. 221;[124 Ill. 208]Hough v. Insurance Co., 57 Ill. 318;White v. Jones, 38 Ill. 159;Strong v. King, 35 Ill. 19; Varner v. Nobleborough, 2 Greenl. 121; Ward v. Bourne, 56 Me. 161; Crane v. McDonald, 45 Barb. 354;Brewer v. Bank, 24 Ala. 440, 1 Edw. Bills, § 289, 2 Pars. Notes & B. 203; Flower v. Elwood, 66 Ill. 438;Conway v. Case, 22 Ill. 127;Archibald v. Argall, 53 Ill. 307; 2 Greenl. Ev. § 527. It is...

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36 practice notes
  • McClintock v. Ayers, 1344
    • United States
    • United States State Supreme Court of Wyoming
    • 1 Marzo 1927
    ...(Minn.) 62 N.W. 1125; Trust Co., v. Crane, 168 N.Y.S. 639; Pearsell Co. v. Jefferies, (Mo.) 105 Am. St. Rep. 496; Bank v. Barrmon, (Ill.) 16 N.E. 210; Bank v. Co., 48 P. 402; Burk v. Dulaney, (U. S.) 38 L.Ed. 698; Ware v. Allen, (U. S.) 32 L.Ed. 563; Machine Co. v. Simon, (Wis.) 80 N.W. 71;......
  • Hurt v. Ford
    • United States
    • Missouri Supreme Court
    • 23 Diciembre 1897
    ...Fed. 219; Westman v. Krumweide (1883) 30 Minn. 313, 15 N. W. 255; Bank v. Luckow (1887) 37 Minn. 542, 35 N. W. 434; Bank v. Bornman (1888) 124 Ill. 200, 16 N. E. 210. The ruling in Burke v. Dulaney is sustained by the following standard text-books, besides those cited in that case: 2 Am. & ......
  • Zeigler v. Illinoistrust & Sav. Bank
    • United States
    • Supreme Court of Illinois
    • 8 Junio 1910
    ...to examine and determine questions of fact as well as of law. Hobbs v. Ferguson's Estate, 100 Ill. 232;Belleville Savings Bank v. Bornman, 124 Ill. 200, 16 N. E. 210;Cheney v. Roodhouse, 135 Ill. 257, 25 N. E. 1019;[245 Ill. 192]Bliss v. Seaman, 165 Ill. 422, 46 N. E. 279;Henry v. Caruthers......
  • Bow v. R. & N. Oil Gas Co., Ltd.
    • United States
    • United States State Supreme Court of Idaho
    • 30 Abril 1926
    ...149 N.W. 882; W. J. Lemp Brewing Co. v. Secor, 21 Okla. 537, 96 P. 636; Knight v. Hurlbut, 74 Ill. 133; Belleville Sav. Bank v. Bornman, 124 Ill. 200, 16 N.E. 210; Seattle v. L. H. Griffith Realty & Bank Co., 28 Wash. 605, 68 P. 1036; Mitchell v. Altus State Bank, 32 Okla. 628, 122 P. 666; ......
  • Request a trial to view additional results
38 cases
  • McClintock v. Ayers, 1344
    • United States
    • United States State Supreme Court of Wyoming
    • 1 Marzo 1927
    ...(Minn.) 62 N.W. 1125; Trust Co., v. Crane, 168 N.Y.S. 639; Pearsell Co. v. Jefferies, (Mo.) 105 Am. St. Rep. 496; Bank v. Barrmon, (Ill.) 16 N.E. 210; Bank v. Co., 48 P. 402; Burk v. Dulaney, (U. S.) 38 L.Ed. 698; Ware v. Allen, (U. S.) 32 L.Ed. 563; Machine Co. v. Simon, (Wis.) 80 N.W. 71;......
  • Hurt v. Ford
    • United States
    • Missouri Supreme Court
    • 23 Diciembre 1897
    ...Fed. 219; Westman v. Krumweide (1883) 30 Minn. 313, 15 N. W. 255; Bank v. Luckow (1887) 37 Minn. 542, 35 N. W. 434; Bank v. Bornman (1888) 124 Ill. 200, 16 N. E. 210. The ruling in Burke v. Dulaney is sustained by the following standard text-books, besides those cited in that case: 2 Am. & ......
  • Zeigler v. Illinoistrust & Sav. Bank
    • United States
    • Supreme Court of Illinois
    • 8 Junio 1910
    ...to examine and determine questions of fact as well as of law. Hobbs v. Ferguson's Estate, 100 Ill. 232;Belleville Savings Bank v. Bornman, 124 Ill. 200, 16 N. E. 210;Cheney v. Roodhouse, 135 Ill. 257, 25 N. E. 1019;[245 Ill. 192]Bliss v. Seaman, 165 Ill. 422, 46 N. E. 279;Henry v. Caruthers......
  • Bow v. R. & N. Oil Gas Co., Ltd.
    • United States
    • United States State Supreme Court of Idaho
    • 30 Abril 1926
    ...149 N.W. 882; W. J. Lemp Brewing Co. v. Secor, 21 Okla. 537, 96 P. 636; Knight v. Hurlbut, 74 Ill. 133; Belleville Sav. Bank v. Bornman, 124 Ill. 200, 16 N.E. 210; Seattle v. L. H. Griffith Realty & Bank Co., 28 Wash. 605, 68 P. 1036; Mitchell v. Altus State Bank, 32 Okla. 628, 122 P. 666; ......
  • Request a trial to view additional results

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