Chem. Nat. Bank of Chicago v. City Bank of Portage

• Decision Date: 02 April 1895
• Citation: 40 N.E. 328,156 Ill. 149
• Parties: CHEMICAL NAT. BANK OF CHICAGO v. CITY BANK OF PORTAGE.
• Court: Illinois Supreme Court

156 Ill. 149

40 N.E. 328

CHEMICAL NAT. BANK OF CHICAGO

v.CITY BANK OF PORTAGE.¹

Supreme Court of Illinois.

April 2, 1895.

Appeal from appellate court, First district.

Assumpsit by the City Bank of Portage against the Chemical National Bank of Chicago. Plaintiff obtained judgment, which was affirmed by the appellate court. 55 Ill. App. 251. Defendant appeals. Affirmed.

Duncan & Gilbert, for appellant.

Tenney, McConnell & Coffeen, for appellee.

CRAIG, J.

This was an action of assumpsit brought by the City Bank of Portage against the Chemical National Bank of Chicago. The declaration contained the common counts and one special count on the following promissory note: ‘$5,000. Chicago, Ill., Feb'y 15th, 1893. Four months _____ days after date I promise to pay to the order of Theodore Wetmore five thousand dollars, at Chemical National Bank of Chicago, value received, with interest at the rate of six per cent. per annum after due; having deposited with this note, as collateral security, certificate No. 477, for fifty shares stock of Chemical National Bank of Chicago, par value $100 per share, which said security, or any part thereof, I hereby give the legal owner or owners authority to sell on the maturity of this note, or at any time thereafter, or before, in the event of said security depreciating in value, at public or private sale, at his discretion, without advertising the same or giving me any notice, and to apply so much of the proceeds thereof to the payment of this note as may be necessary to pay the same, with all interest due thereon, and also to the payment of all expenses attending the sale of said collateral security; and in case the proceeds of the sale of said collateral security shall not cover the principal, interest, and expenses, I promise to pay the deficiency forthwith after such sale, with interest at six per cent. per annum. And it is hereby agreed and understood that, if recourse is had to said collateral, any excess of collateral upon this note shall be applicable to any other note or claim held by said owner or owners against me, and, in case of any exchange of or addition to the collateral above named, the provisions of this note shall extend to such new or additional collateral. C. E. Braden. Indorsed without recourse. Theodore Wetmore.’ It was averred in the declaration that on, to wit, the 15th day of February, A. D. 1893, the defendant, in the county of Cook, made its certain note in writing, called a ‘promissory note,’ and then and there delivered the said note to Theodore Wetmore, by which said note the said defendant, by the name, style, and description of C. E. Braden, promised to pay to the order of said Theodore Wetmore $5,000, four months after date, at the Chemical National Bank of Chicago, with interest at 6 per cent. per annum, for value received. To the declaration the defendant pleaded the general issue. The parties, by agreement, waived a jury, and a trial was had before the court, resulting in a judgment in favor of the plaintiff. This judgment was affirmed in the appellate court, to reverse which the defendant sued out this writ of error.

On the trial the plaintiff, over the objection of the defendant, read in evidence the note described in the declaration. The plaintiff then called as a witness C. E. Braden, and, no objection whatever being made to his evidence, he testified, in substance: That in 1893 he was cashier, and J. O. Curry president, of the Chemical National Bank. That he was familiar with the facts connected with the execution of the note of February 15, 1893, for $5,000. That in January or February of that year, in order to protect certain debts due to the bank, it took some of its stock from certain debtors. Hopkins, assistant cashier, had made a loan for the bank, through certain brokers, by giving his own note, payable on call, secured by some of the bank stock which the bank had taken in. After this note had run 15 days, the holder called the money. It was then agreed between Curry, the president, Braden, cashier, and Hopkins, assistant cashier, if Braden could place five or ten thousand through a broker in Minneapolis, it would be treated as a bank obligation, and the bank would pay it, and it would have 50 or 100 shares of the stock, as the case might be, transferred to Braden, to be used as collateral to secure...