First Nat. Bank of Las Vegas v. Oberne

• Decision Date: 15 May 1886
• Citation: 7 N.E. 85,121 Ill. 25
• Parties: FIRST NAT. BANK OF LAS VEGAS v. OBERNE and others.
• Court: Illinois Supreme Court

121 Ill. 25

7 N.E. 85

FIRST NAT. BANK OF LAS VEGAS

v.OBERNE and others.

Supreme Court of Illinois.

May 15, 1886.

Appeal from First district.

MULKEY C. J., dissents.

SHELDON, J.

This was an action brought by the First National Bank of Las Vegas against George Oberne and Henry N. Hosick upon the following guaranty of a promissory note, viz.:

‘$1,000.

LAS VEGAS, N. MEXICO, October 15, 1882.

‘Six months after date I promise to pay to the order of Oberne, Hosick & Co. one thousand dollars, at Las Vegas, New Mexico, at the rate of one per cent. per month from date till paid. Value received.

‘EDWIN A. PRENTICE.

‘Pay to the First National Bank, Las Vegas, or order.

‘For and in consideration of the sum of ten cents, the receipt whereof is hereby acknowledged, we hereby guaranty the payment of the within note, waiving demand and notice of non-payment and protest, and agree to pay all costs and expenses paid or incurred in collecting same.

‘OBERNE, HOSICK & Co.

‘By THOMAS DAVIS.

The declaration contained also the common counts. The issue formed under the plea of the general issue, verified by affidavit, was tried by the court without a jury, and found for the defendants, and, after overruling a motion for a new trial, judgment was entered accordingly, which was affirmed on appeal to the appellate court for the First district, and the plaintiff appealed to this court.

Oberne, Hosick & Co., the defendants, were a firm in Chicago, dealing in wool, hides, and pelts, etc., who bought them at various places, Las Vegas among others, had them shipped to Chicago, and sold them there. Thomas Davis was their agent at Las Vegas. The course of business was for Davis, when he made a purchase, or anticipated making one, to draw drafts on Oberne, Hosick & Co., the amounts of which were placed to their credit in open account on the books of the bank, and were checked against by Davis, who signed the firm name of Oberne, Hosick & Co. to the checks by Thomas Davis. On October 23, 1882, the account of Oberne, Hosick & Co. was overdrawn $16.45. On that day Davis applied to the bank for it to purchase the note in question. The cashier wrote on the back of the note the indorsement and guaranty which appear, and Davis signed the name of the firm by himself thereunder. The note was then taken by the bank, and the amount of it placed to the credit of Oberne Hosick & Co. on the books of the bank. This amount, between October 23d and November 20th following, was all checked out by Davis upon checks signed: ‘OBERNE, HOSICK & CO. Per THOMAS DAVIS.’ There were no other credits in the account of Oberne, Hosick & Co. during that period from October 23 to November 20, or until December 1, 1882. Two of the checks thus drawn, one on October 24th, the other on October 26th, for the respective sums of $500 and $60.27, were given to Weil and Graaf for hides and pelts bought of them by Thomas Davis, as agent of Oberne, Hosick & Co. The note...