Godair v. Ham Nat. Bank

• Decision Date: 21 February 1907
• Citation: 80 N.E. 407,225 Ill. 572
• Parties: GODAIR et al. v. HAM NAT. BANK.
• Court: Illinois Supreme Court

225 Ill. 572

80 N.E. 407

GODAIR et al.

v.HAM NAT. BANK.

Supreme Court of Illinois.

Feb. 21, 1907.

Appeal from Appellate Court, Fourth District.

Action by the Ham National Bank against W. H. Godair and others. From a judgment of the Appellate Court affirming a judgment in favor of plaintiff, defendants appeal. Reversed and remanded.

Jones, Jones & Hocker and William H. Green, for appellants.

H. Clay Horner and Albert Watson, for appellee.

HAND, J.

This was an action of assumpsit commenced by appellee, the Ham National Bank of Mt. Vernon, against W. H. Godair, A. G. Godair, and E. C. Gibson, doing business as the Godair Commission Company, and Samuel L. Moreland, in the circuit court of Jefferson county, to recover the amount of two drafts for the sum of $500 each, and interest, drawn, respectively, on November 4 and November 6, 1903, by Samuel L. Moreland, through the appellee bank, upon the Godair Commission Company and paid upon the checks of Samuel L. Moreland by the appellee, which drafts were allowed to go to protest by said Godair Commission Company for nonpayment. The declaration was in the usual form, and the general issue was filed, and a trial resulted in a verdict and judgment in favor of the appellee for the sum of $1,076.90, which judgment was affirmed by the Appellate Court for the Fourth District, and an appeal has been prosecuted to this court by the Godair Commission Company.

It is first contended by the appellants that the evidence does not support the plaintiff's cause of action. This court cannot weigh the evidence, and the question sought to be raised by the appellants can only arise as a question of law in this court; and it has been repeatedly held by this court that the only manner in which the question of whether the evidence fairly tends to support the plaintiff's cause of actionor the defendant's defense can be preserved for review as a question of law in this court is by an instruction, offered at the close of all the evidence, to find for the plaintiff or defendant. Pittsburg, Cincinnati, Chicago & St. Louis Railway Co. v. Hewitt, 202 Ill. 28, 66 N. E. 829;Chicago Union Traction Co. v. O'Donnell, 211 Ill. 349, 71 N. E. 1015;Streator Independent Telephone Co. v. Continental Telephone Construction Co., 217 Ill, 577, 75 N. E. 546. As no such instruction was offered in this case, the question of law whether the evidence tended to support the plaintiff's cause of action is not preserved for review upon this record, and cannot be considered in this court.

It is next contended by the appellants that the court erred in its ruling upon the admission of evidence. Samuel L. Moreland was a stock buyer and shipper in Jefferson county, and he testified that some time prior to the drawing of said drafts he entered into an arrangement with the Godair Commission Company, doing business at East St. Louis, by which it was agreed he was to purchase and ship live stock to said commission company, and that said commission company was to pay drafts drawn by him upon said company with which to obtain funds to pay for said live stock, that he communicated said arrangement to the appellee, and that it agreed to cash said drafts. Mr. Pavey, the cashier of the bank, testified that Moreland had drawn numerous drafts through the appellee bank upon said commission company by virtue of the arrangement testified to by Moreland, prior to the time he drew the drafts in question, which had been paid by the commission company. Mr. Grant, a former cashier of the bank, testified that on an occasion prior to the drawing of the drafts in question, and while he was acting as cashier for the bank, Moreland desired said bank to cash certain drafts drawn by him upon said commission company for a considerable amount; that before cashing the same he called up the office of the Godair Commission Company, in East St. Louis, by telephone, and asked for Mr. Godair; that some one in the office answered that Mr. Godair was not in; that subsequently the commission company called up the bank and said the party wanted by the bank was now in; that he thereupon talked with some one connected with the Godair Commission Company; that he inquired if the drafts of Moreland would be paid, as he wished to draw through the bank upon the Godair Commission Company for a sufficient amount to pay for two or three car loads of cattle; that the party with whom he talked said the drafts would be paid; that he did not know Mr. Godair and did not recognize his voice, and could not say with whom he talked at the office of the Godair Commission Company. The testimony of Mr. Grant was objected to as incompetent. The objection was overruled and the testimony was admitted, and its admission is now urged as reversible error.

In the case of Wolfe v. Missouri Pacific Railway Co., 97 Mo. 473, 11 S. W. 49,3 L. R. A. 539, 10 Am. St. Rep. 331, substantially the same question presented here was passed upon by the Supreme Court of Missouri. It was there sought to introduce a conversation had by telephone between a witness and some person in the business place of one of the parties to the suit. The evidence was held admissible. The court said: ‘When a person places himself in connection with the telephone system through an instrument in his office, he thereby invites communication, in relation to his business, through that channel. Conversations so held are as admissible in evidence as personal interviews by a customer with an unknown clerk in charge of an ordinary shop would be in relation to the business there carried on. The fact that the voice at the telephone was not identified does not render the conversation inadmissible.’ While the weight to be given to such a conversation is to be determined by the jury, we think the reasoning of the court in the Wolfe Case satisfactory, and are of the opinion the court did not err in admitting the evidence.

It is next urged that the court committed reversible error in giving to the jury plaintiff's fifth instruction, which reads as follows: ‘A witness may be impeached by the contradictory testimony of other credible witnesses upon material matters or by proof that he has made statements upon material questions out of court contrary to his testimony here, and, when so impeached, all of his evidence may be disregarded by the jury except where corroborated by other credible evidence; and, if the jury believe that any witness for the defense has been impeached by either of the methods aforesaid, then you are at liberty to disregard the evidence of such witness, except so far, if at all, as he may have been corroborated by other credible evidence in the case.’ Two criticisms are...