Dietrich v. Mitchell

• Decision Date: 31 January 1867
• Citation: 43 Ill. 40,92 Am.Dec. 99,1867 WL 4979
• Parties: JACOB DIETRICHv.ALBERT A. MITCHELL.
• Court: Illinois Supreme Court

43 Ill. 40

1867 WL 4979 (Ill.)

92 Am.Dec. 99

JACOB DIETRICH

v.ALBERT A. MITCHELL.

Supreme Court of Illinois.

January Term, 1867.

WRIT OF ERROR to the Circuit Court of Morgan county; the Hon. D. M. WOODSON, Judge, presiding.

This was an action of assumpsit commenced to the September Term, A. D. 1865, of the Circuit Court of Morgan county by Albert A. Mitchell against Jacob H. Dietrich, as guarantor of a promissory note.

The declaration contained four counts. The first count set out a promissory note in the words and figures following:

“NAPLES, November 13, 1856.

On or before the first day of March, 1858, I promise to pay J. H. Dietrich or order five hundred dollars, bearing ten per cent interest from March 1, 1857, for value received.

JOHN C. CLIFTON.”

And averred that the defendant, who was the payee therein, for value received, assigned, transferred and indorsed the same to the plaintiff in the words and figures following:

“For value received, I assign and guarantee the payment of the within note to A. A. Mitchell. Dated this fifth day of January, 1858.

J. H. DIETRICH.”

It also averred insolvency of Clifton, the maker.

The second count set out the same note and assignment; averred that the assignment was made for value received; that the maker was insolvent; and that the note was not paid.

The third count set out the same note and indorsement, averred that Dietrich was liable as guarantor, and that Clifton, the maker, was insolvent, but did not aver a consideration for the guaranty.

The fourth count set out the same note and writing on the back thereof, and averred that defendant, for the sum of five hundred and forty-two dollars and thirty-three cents, paid to him at that time, guarantied the payment of said note and failed so to do.

To this declaration the defendant filed two pleas -- non-assumpsit, and non est factum sworn to -- and the plaintiff joined issue.

A jury was summoned to try the issues, who, after hearing the evidence, returned, under the direction of the court, a verdict for plaintiff for $955.50.

The defendant moved for a new trial, which motion the court overruled, and entered judgment on the verdict. Defendant excepted.

On the trial, the plaintiff introduced two witnesses, who testified that they had known defendant for several years; had seen him write, and knew his hand writing; that the word, “J. H. Dietrich,” was his handwriting, but that the writing above the name was not the handwriting of defendant.

Plaintiff then offered in evidence to the jury the note and guaranty thereon.

The defendant introduced Murray McConnel, who testified to the appearance and condition of the note while in his hands, as the attorney of plaintiff, previous to the suit.

The plaintiff objected, on the ground that his knowledge in that respect was privileged, but the court overruled the objection and admitted the testimony, to which plaintiff excepted.

The defendant also introduced a witness named J. H. Carver, and offered to prove that Clifton, the maker of the note, was in possession of a large amount of personal property long after the note became due, and after it was assigned to plaintiff. The plaintiff then entered a nol. pros. to the first and second counts of his declaration. Whereupon the court decided that the proof so offered was not admissible.

The defendant then moved the court to exclude the note and all writing thereon from the jury, on the ground that under the issue there was no proof of the execution of the guaranty, nor of a consideration therefor. Which motion the court overruled, and decided that the plaintiff was not bound to prove a consideration for the guaranty; that the plea in the case only put in issue the signature to the guaranty, and that when the defendant indorsed his name on the back of the note, and put the same in circulation, he thereby authorized any persons to whom it might come to write this guaranty over his signature.

Messrs. MORRISON & EPLER, for the plaintiff in error.

Mr. H. T. ATKINS, for the defendant in error. Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action of assumpsit brought by Mitchell against Dietrich, as guarantor of a promissory note. The note had been given by one Clifton to Dietrich, as payee. It had been indorsed by the latter, and over his name, in a different handwriting, was written an assignment and a guaranty. He filed a plea denying under oath the execution of the guaranty. The jury found a verdict for the plaintiff, and the defendant brings up the record.

On the trial the plaintiff asked, and the court gave, the following instruction:

“2. The court further instructs the jury for the plaintiff that the plaintiff in this case, under the pleadings herein, in order to make out a prima facie case to entitle him to recover a verdict, is only bound on his own part to put the note in the declaration mentioned in evidence, and to prove the signature of the defendant, Dietrich, indorsed upon the back of said note, to be his true and genuine signature; and if the jury find such facts proven, and find no evidence offered on the part of the defendant, that the contract of assignment and guaranty, written on said note, over said defendant's signature, was not warranted by the agreement of the parties plaintiff and defendant herein, they will find for the plaintiff.”

The defendant asked, and the court refused, the following instruction:

“2. If the jury believe, from the evidence, that the note in evidence in this case, when negotiated by defendant, was indorsed in blank by him, then it devolves upon the plaintiff, before he can recover in this case, to prove to the satisfaction of the jury, that defendant agreed to guaranty the payment of the note, or previously authorized or subsequently sanctioned the written guaranty indorsed upon the note.” The instruction given for the plaintiff should have been refused, and that refused for the defendant should have been given. If the name of the...