Cushman v. Cogswell

• Decision Date: 30 September 1877
• Citation: 86 Ill. 62,1877 WL 9663
• Parties: WILLIAM H. W. CUSHMANv.CHARLOTTE A. COGSWELL.
• Court: Illinois Supreme Court

86 Ill. 62

1877 WL 9663 (Ill.)

WILLIAM H. W. CUSHMAN

v.CHARLOTTE A. COGSWELL.

Supreme Court of Illinois.

September Term, 1877.

APPEAL from the Circuit Court of La Salle County; the Hon. EDWIN S. LELAND, Judge, presiding.

This was an action of assumpsit by Charlotte A. Cogswell against William H. W. Cushman.

Mr. CHARLES BLANCHARD, for the appellant. Messrs. RICHOLSON & SNOW and Mr. E. F. BULL, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action by appellee against appellant to recover the amount of two United States bonds for which the following receipt had been given by appellant:

“ Ottawa, Ill., April 29, '64.

Received of Mrs. C. A. Cogswell Two 5-20 U. S. Bonds, Nos. 1376 and 819, dated Washington, D. C., May 1st, 1862, as a special deposit, being for Five Hundred Dollars each.

WM. H. W. CUSHMAN.

W. H. C.”

There was a verdict for plaintiff for $1,865 at October term, 1875, a remittitur for $90, and judgment for the residue; from which defendant appealed.

The sole testimony in support of appellee's claim was that of herself, with the receipt. She, among other things, testified that she received only two payments of interest on the bonds, of $30 each, one before and one after the date of the receipt; that she never drew or asked for any other interest on the bonds afterward, until her house was burned in 1873; that she then asked appellant for the interest on her bonds, and he denied having any belonging to her.

Appellant testified that his son William was the manager of his bank from 1862 until its business was transferred to the First National Bank of Ottawa; that he knew nothing about the transaction in question until his attention was called to the fact that the bonds had been delivered to appellee and she had not given up the receipt for them; that, appellee being in the bank one day, he mentioned to her that she had got the bonds and still held the receipt, and that she must return it; that she said she had lost the receipt, but would return it if she could find it; that afterward he had a receipt made out for the bonds and sent it to her; that she signed it, and it was put away among the files of the bank, detailing circumstances tending to account for the non-production of the receipt. He is corroborated as to this conversation with appellee by the evidence of Cornell, the book-keeper, who was present at the time.

It was in proof that, during the time appellee claims the bonds were in appellant's hands and she had applied for no interest on them and had said nothing in regard thereto, she nor her husband owned any real estate except a house and lot, the title of which was in her name; that she borrowed money of appellant and repaid it; mortgaged her place to raise money for her husband; signed a note with her husband to appellant for $30, at which time he held her husband's note for money borrowed, and his watch, and mortgage on a piano, to secure its payment.

This allusion to the testimony shows it to be highly contradictory, both positive and by facts and circumstances, and is made in view of the instructions as showing the importance that they should have been accurate so far as they bore upon the evidence.

The following instructions were given for the appellee:

“1. That if the jury believe, from the evidence, that the plaintiff deposited with the defendant the United States bonds described in the receipt, of the par value of one thousand dollars, and that, after making such deposit, the defendant, either by himself or by his son, gave to the plaintiff the receipt offered in evidence, and that afterward and prior to the commencement of this suit the plaintiff demanded of the defendant the bonds, and that the...