Buskirk v. Day
| Decision Date | 30 April 1863 |
| Citation | 32 Ill. 260,1863 WL 3180 |
| Parties | LAWRENCE VAN BUSKIRKv.CHARLES B. DAY et al. |
| Court | Illinois Supreme Court |
APPEAL from Circuit Court of Peoria County.
The facts and questions raised for determination are sufficiently stated by the court.
M. Williamson, for appellant.
Cooper & Moss, for appellees.
This suit was originally commenced before a justice of the peace of Peoria county, to recover a balance claimed to be due on the following note:
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¦$200.¦PEORIA, Nov. 11, 1859. ¦
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For value received, I promise to pay to the order of Lewis Howell, president of the board of trustees of loan to the American Pottery Company, two hundred dollars, payable at the banking house of S. Pulsifer & Co., in Peoria, in installments. First installment, 10 per cent., at date; second installment, 5 per cent., on the first day of December, 1859, and the balance in installments of 5 per cent., on the first day of each month thereafter, until paid.
L. VAN BUSKIRK.
The note was indorsed as follows: There was a credit indorsed of seventy dollars.
A judgment was rendered for the plaintiffs, from which the defendant appealed to the circuit court, where, on a trial before a jury, a verdict was rendered for the plaintiffs for one hundred and forty-one and five-hundredths dollars, and judgment accordingly. The case is brought here by defendant, by appeal. The principal point raised is upon the fourth instruction given for the plaintiffs:
That instruction is as follows:
“If the jury believe, from the evidence, that the note sued on was given in pursuance of a subscription theretofore made, to loan $200 to the American Pottery Company, or to a board of trustees of such loan, for the use of said company, and that said subscription was made upon and under a written contract between certain parties, as commissioners for organizing said company, and the subscribers to such loan, of whom defendant was one, which contract purports to set forth the terms and conditions of, and inducements to, and consideration for such loan, such written contract is the sole and exclusive evidence of what said terms, conditions, consideration and inducements were, and no evidence of cotemporaneous statements or representations, made to induce defendant to become a subscriber to such loan, is to be taken into consideration by the jury in making up their verdict.”
It is objected by the appellant that, inasmuch as the issue before the court was fraud, the defendant was at liberty to go outside of the written contract, and show all the circumstances attending the transaction, and therefore it was error to inform the jury that the written contract furnished all the evidence for this consideration.
There is force in this, and so the circuit court thought, for, at the instance of the defendant, the tenth instruction was given expressly for the purpose, as stated on the margin, of modifying the fourth instruction. The tenth instrnction asked by the defendant is as follows:
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