Combs v. Bradshaw
| Decision Date | 28 February 1880 |
| Citation | 6 Ill.App. 115,6 Bradw. 115 |
| Parties | WILLIAM S. COMBSv.WILLIAM P. BRADSHAW, Adm'r. |
| Court | United States Appellate Court of Illinois |
ERROR to the Circuit Court of Madison county; the Hon. WILLIAM H. SNYDER, Judge, presiding. Opinion filed April 2, 1880.
Messrs. IRWIN & SPRINGER and Messrs. BURROUGHS & BURNETT, for plaintiff in error; as to competency of the witnesses, cited Whitmer v. Rucker, 71 Ill. 410; Rev. Stat. Chap. 51, § 1; Kimball v. Cook, 1 Gilm. 423; Kennedy v. Evans, 31 Ill. 258.
The rule rejecting parol testimony to vary a writing, does not apply when only part of the contract was reduced to writing, nor to collateral undertakings: Chapin v. Dobson, Weekly Jur. Jan. 15, 1880; 1 Parsons on Contracts, 430; Bishop on Contracts, § 61; Mann v. Smyser, 76 Ill. 365.
A note ceases to draw more than the legal rate of interest after maturity, unless so specified: Holden v. Freedman's Savings Co. 8 Wash. Law Rep. 6.
A court of equity has jurisdiction of this case: High on Injunctions, § 832; Story's Eq. Jur. § 324; Brandt on Suretyship, § 209; Ramsey v. Perley, 34 Ill. 504; Magee v. Magee, 51 Ill. 500; Thomas v. Caldwell, 50 Ill. 138.
Mr. A. W. METCALF, for defendant in error; that the witness Miller was incompetent, cited Rev. Stat. 475; Boynton v. Phelps, 52 Ill. 210; Merrill v. Atkins, 59 Ill. 19; Richerson v. Sternburg, 65 Ill. 272; Donlevy v. Montgomery, 66 Ill. 227; Langley v. Dodsworth, 81 Ill. 86; Whitmer v. Rucker, 71 Ill. 410.
He could only be rendered a competent witness by the previous introduction of the agent of the deceased: Marshall v. Karl, 60 Ill. 208; Freeman v. Freeman, 62 Ill. 199; Stonecipher v. Hall, 64 Ill. 121; Jacquin v. Davidson, 49 Ill. 82.
Indefinite extension of time for payment will not release the surety: Flynn v. Mudd, 27 Ill. 323; Pearl v. Wellman, 11 Ill. 352; Woolford v. Dow, 34 Ill. 424.
Rejecting competent evidence is not error when the record shows that its admission would not have changed the result: Rowley v. Hughes, 40 Ill. 316; Ryan v. Brant, 42 Ill. 78; Thompson v. McLaughlin, 66 Ill. 407; Deniston v. Hoagland, 67 Ill. 265; Pratt v. Tucker, 67 Ill. 346.
Where substantial justice has been done a judgment will not be reversed: Elam v. Badger, 23 Ill. 498; Schwarz v. Schwarz, 26 Ill. 81; Hall v. Groufe, 52 Ill. 421.
Where it is apparent that a new trial will produce the same result the judgment should stand: McConnell v. Kibbe, 33 Ill. 176; Curtis v. Sage, 35 Ill. 22; Coursen v. Ely, 37 Ill. 338; Root v. Curtis, 38 Ill. 192; Potter v. Potter, 41 Ill. 80; Watson v. Wolverton, 41 Ill. 241; Clark v. Pageter, 45 Ill. 185; Pahlman v. King, 49 Ill. 266.
The defendant in error as the administrator of the estate of Patience C. Morrison, deceased, instituted an action of assumpsit in the Madison Circuit Court, against the plaintiff in error and George A. Miller, for the recovery of a judgment on a promissory note, of which note the following is a true copy:
“$1,350. Two years after date, we or either of us, promise to pay Patience C. Morrison, or order, the sum of Thirteen hundred and Fifty dollars, for value received (money loaned), with interest from date at the rate of eight per cent. per annum, interest payable annually.
+----------------------------+
¦(Signed)¦GEORGE A. MILLER, ¦
+--------+-------------------¦
¦ ¦WILLIAM T. COMBS.” ¦
+----------------------------+
July 13th, 1865.
The plaintiff in error filed his bill in equity against the said defendant in error and the said George A. Miller, seeking to enjoin and restrain the defendant in error from any further prosecuting said action of assumpsit against him. The allegations in the bill, in brief, are that the said George A. Miller borrowed from the said Patience C. Morrison, through her agent A. M. Brown, the said sum of thirteen hundred and fifty dollars; that the said Brown was acting as the agent of Patience C. Morrison in the entire transaction, and remained her agent until her death; that plaintiff in error, was the surety of Miller, and had no interest whatever in the sum borrowed by Miller, and did not receive any part of it, and that Brown, the agent, well knew that plaintiff in error was security for Miller, and had signed the note for Miller's accommodation only; that Miller paid the interest due on said note at eight per cent. annually to Brown, to the 13th day of July, 1870; that on the last named day the agent Brown promised and agreed with Miller (the note long since being due) that he would extend the time for payment for one year from that date, if Miller would pay ten per cent. interest per annum on the said note; that Miller assented to the proposition, and the following indorsement was written on the said note by the said Brown, and signed by the said Miller: “It is agreed by the parties to this note, that the interest shall be at the rate of ten per cent. until paid.
+----------------------------+
¦(Signed)¦GEORGE A. MILLER.” ¦
+----------------------------+
Collinsville, July 13th, 1870.
And that by said agreement the time of the payment of said note was extended to the 13th day of July, 1871; that this agreement and extension was made without the consent or knowledge of plaintiff in error, and that after that time the said Miller annually paid the interest on said note to the said Brown, at the rate of ten per cent. to the year 1876; that on the 13th of July, 1870 and 1871, the said Miller was solvent; that the plaintiff in error early in the year 1871, verbally requested the said Patience C. Morrison to bring suit on said note, and that she promised to do so; that the said Miller is now insolvent. That in the year 1876 the said Patience C. Morrison died; that Bradshaw became her administrator, and has brought suit on said note against Miller and plaintiff in error. The bill prays for a preliminary injunction, and that upon final hearing the said Bradshaw as administrator, may be perpetually enjoined from any further prosecuting the said suit for the collection of said note. Answer under oath is waived. The answer of defendant in error admits the making of the note, and denies all other material allegations except as to the death of his intestate. The depositions of plaintiff in error, and the said George A. Miller, were taken in support of the bill. Exceptions were filed to the depositions for the following reasons. 1st, They are not competent witnesses, for the reason that the suit was brought by Combs, an alleged surety, on a joint and several note signed by them to Patience C. Morrison, deceased, and sued on by defendant as her administrator. 2nd, Because the questions are leading and improper. 3d, Because the evidence of Miller shows that Brown wrote and he signed an agreement in writing on said note as follows: “It is agreed by the parties to this note that the interest shall be at the rate of 10 per cent. until paid.
+----------------------------+
¦(Signed)¦GEORGE A. MILLER.” ¦
+----------------------------+
“Collinsville, July 13th, 1870.”
The Circuit Court sustained the exceptions and suppressed the depositions, and there being no other testimony in support of the bill, the injunction was dissolved and the bill dismissed. Miller in his testimony says, in substance, that he borrowed the money from Brown, as the agent of Patience C. Morrison. That he always paid the interest to Brown except once, when he paid it to his wife. That he paid the interest to Brown annually, at the rate of eight per cent. per annum, to the 13th day of July, 1870. That at that time Brown insisted the money was worth ten per cent., and witness agreed if Brown would extend the time of payment for one year he would pay ten per cent. interest after that time. That Brown wrote the indorsement on the note and witness signed it. That he did not inform the plaintiff in error of the agreement, and he knew nothing of it, so far as witness knew. That he paid the interest at the rate of ten per cent. to the 13th July, 1876, and that Patience C. Morrison died in December, 1876. The plaintiff in error states that Miller became insolvent in the spring of 1878.
It is insisted, First--that they are not competent witnesses, for the reason that the suit was brought by Combs, an alleged surety in a joint and several note signed by them, to Patience C. Morrison, and sued on by defendant as her administrator. And this question involves in part a consideration of chapter 51, Revised Statutes of 1874, entitled Evidence and Depositions. The first eight sections of that chapter are, without being materially changed, taken from the act of the General Assembly of 1867, entitled “An act in relation to the competency of witnesses.” Prior to the enactment of that law, the rules and principles of the common law in regard to the competency of witnesses prevailed in this State. Before that time all persons, whether parties to the record or not, who had an interest in the subject-matter in litigation or in the result of the proceeding, were disqualified as witnesses as long as that interest existed. The first section of the act is an entire and complete departure from the long established rule as to the competency of witnesses, and is a general removal of all disabilities except as thereinafter stated. The second section is a limitation on the first section, and provides in substance that no party to the action, or person interested by virtue of the first section, shall be allowed to testify when the adverse party sues or defends as the trustee or conservator of any idiot, etc., or as the administrator or executor of any deceased person, unless when called as a witness by such adverse party so suing or defending, and except in a number of other cases. It will be seen that section two has reference entirely to section one. It has no reference whatever to the rules in regard to the competency of witnesses existing then and prior to that time.
The Legislature seem to have concluded that the rule...
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