Harris v. Atchinson

CourtUnited States Appellate Court of Illinois
Writing for the CourtLACEY, J.
Citation2 Bradw. 587,2 Ill.App. 587
Decision Date31 May 1878

2 Ill.App. 587
2 Bradw. 587


Appellate Court of Illinois, Third District.

May Term, 1878.

[2 Ill.App. 587]

APPEAL from the County Court of Morgan county; the Hon. E. P. KIRBY, Judge, presiding.

Messrs. MORRISON, WHITLOCK & LIPPINCOTT, for appellant; that forbearance to sue on a doubtful demand is a good consideration for a promise to pay, cited Mulholland v. Bartlett, 74 Ill. 58; Knotts v. Preble, 50 Ill. 226; 1 Chit. Pl. 101.

The proof must correspond with the allegation: Wheeler v. Reid, 36 Ill. 81; Murray v. Hanely, 70 Ill. 318.

The consideration must be proved as laid: R. & W. R. W. Co. v. Rhodes, 76 Ill. 285.

Messrs. DUMMER, BROWN & RUSSELL, for appellee; that in pleading, a material statement not traversed is taken to be admitted, cited 1 Chit. Pl. 658.

A note signed upon condition that another signer shall be procured before delivery, is without consideration if the other signer is not procured: Knight v. Hurlbut, 74 Ill. 133; Stricklin v. Cunningham, 58 Ill. 293.


This suit was brought by appellant against appellee and J. W. Caldwell and W. W. Deatherage, to recover on a certain promissory note signed by appellee as security for the other two defendants, for $791.66, dated October 19, 1875, and due one year from date, with ten per cent. interest per annum.

[2 Ill.App. 588]

The defense set up by the appellee to said note was by his first plea, that the note was without consideration in this: that after the note was signed by his co-defendonts it was promised and agreed by and between them that if the appellee would sign the note as security for his co-defendants, they would procure some other person pecuniarily responsible other than appellee to sign the said note as security before it should be delivered by appellant as a binding obligation on appellee, which promise and agreement was the sole consideration upon which the said note was signed by appellee; that the appellee did sign the said note as security for his co-defendants, of all which the appellant had notice; that without the consent of appellee the note was delivered to appellant without the signature of the promised security, etc.

The 2nd and 3d pleas set up the same defense substantially, averring, however, that the note was deposited by appellant, or by his consent was deposited in the hands of J. E. Barrett, for the signature of the other security, and that without the consent of appellee the note was delivered to appellant without the signature of the other security, etc.

Issue was taken on all the allegations of these pleas except the allegation that appellant had notice of the above agreement, which latter allegation by issue not being joined must be taken as confessed. Default was entered, and judgment rendered against the principals on the note, and jury waived and trial had by the court as to appellee. The court found for appellee, and as to him rendered judgment against appellant for costs, who brings the case to this court on appeal, and assigns for error the refusal of the court below to render judgment against appellee for the amount of the note and the giving judgment against appellant for costs.

The undisputed facts, as appears by all the evidence in the case are,...

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