Gordon v. Adams

• Decision Date: 25 January 1889
• Citation: Gordon v. Adams , 127 Ill. 223, 19 N.E. 557 (Ill. 1889)
• Parties: GORDON v. ADAMS et al.
• Court: Illinois Supreme Court

127 Ill. 223

19 N.E. 557

GORDON

v.ADAMS et al.

Supreme Court of Illinois.

January 25, 1889.

Error to appellate court, Second district.

Lanphere & Brown, for plaintiff in error.

McKenzie & Calkins, for defendant in error.

SHOPE, J.

The only question of importance arising on this record is one of fact; that is, were the promissory notes sought to be collected from the estate of James A. Bundy, deceased, or either of them, executed by the said Bundy and delivered to the payees thereof respectively, or to any one for them, or for their use?

Upon careful consideration of all the evidence we are inclined to hold that a preponderance thereof shows that they were severally executed by the said Bundy. The signature to each of the notes is testified by a number of witnesses, seemingly possessed of the requisite means of knowledge, to be in his handwriting; and, while there is some conflict upon this point, when this evidence is considered in connection with the circumstances shown to exist about the time the notes purport to have been made, and the declarations of said Bundy that he made notes to his sons, it leaves little or no doubt of their execution by him.

No discussion will be necessary of the points made that the notes are without consideration and that one of them had been altered materially after its execution; for, if it becomes necessary, it will be found that there was a sufficient consideration for each of said notes, and the alteration complained of, being the writing of the word ‘five’ over the word ‘ten,’ so that the note would read for $5,000 instead of $10,000, is sufficiently explained upon the face of the instrument itself, the original of which is properly certified to this court in the record.

The question presenting most difficulty is in respect of the delivery of the notes. It is conceded, as must be, that neither of the two notes were delivered to the payees thereof personally, or that either thereof were, at any time, in their individual possession or control. It is not, however, indispensable to the delivery of a promissory note that it should pass into the personal possession of the payee. If delivery is made to another for the payee, without condition, his acceptance of it may be presumed, and the delivery of it will be complete. Thompson v. Candor, 60 Ill. 244;Bodley v. Higgins, 73 Ill. 375.

In determining the question of delivery the intention of the parties with respect thereof is the controlling element. This intention may be shown by direct proof, or by proof of the acts and declarations of the parties evincing such intent, or may be inferred from circumstances shown which are sufficient to create the presumption of delivery. Thus, if a deed or note is found in the possession of the grantee or payee, its delivery will be presumed. 1 Pars. Bills & N. 49; Masterson v. Cheek, 23 Ill. 76;Walker v. Walker, 42 Ill. 311.

It is not here shown that either of these notes were ever in the possession of the payees, or either of them, or that they were ever delivered to any one for their use. It does appear, however, that in the summer of 1873, substantially five years after the maturity of the notes, they were found among the papers of Mrs. Gordon, a deceased daughter of the maker, and sister of the payees. There is no legitimate evidence showing, or tending to show, how or when the notes came into possession of Mrs. Gordon, or for what purpose they were in her keeping. It is not shown that the payees ever lived with her, or at her house, nor, indeed, is there any circumstance or fact shown from which an inference could arise that she received the notes from the payees.

The circumstances out of which it is claimed this indebtedness arose, and from which the inference of the delivery of these notes is mainly sought to be drawn, may be briefly stated: In 1853, James A. Bundy owned about 800 acres of land in Knox county, and his two sons, Milton and Marion, resided with him,-the latter being under age. The record contains evidence tending to show that the father promised the sons if they would go on and work faithfully in improving his land he would give to each a quarter section thereof; that the sons continued to work for their father until 1857, when the father sold all the lands, applying the proceeds to his own use; that much trouble and dissatisfaction was thereby produced in the family, the mother taking the part of the sons; that the father tried to get the land back, but, failing in this, it is shown that he consulted with the witness Reynolds about giving the boys his obligation payable in 10 years. The witness testifies: ‘He said if he could not get the farm back, he was going to provide some other way by which they would get their pay; but, if he had to do that, he would do it in his own time and way. After he found he could not get the farm back he asked me what way he had better fix it for the boys. He said he was going to fix it in some shape right away, and asked me what I thought about making an obligation to the boys payable ten years after date.’ The witness gave his opinion, when the father, speaking of not getting the farm back, said: ‘I will do the next best thing,-make out notes for the boys.’ The witness further says: ‘Afterwards he told me he had made...