Harris v. Atchinson
| Decision Date | 31 May 1878 |
| Citation | 2 Bradw. 587,2 Ill.App. 587 |
| Parties | THOMAS R. HARRISv.GRANVILLE ATCHINSON. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
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.
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, that appellant prior to the time the note in suit was executed, held a note of $2,000 signed by Caldwell and Deatherage, the co-defendants, with appellee as principals and appellant as security. That the first note was given up and canceled, and at the came time Deatherage proposed to and did pay appellant $1,500 in cash, and agreed to give a new note with some names on it for the balance of the first note. The question whether any other person should sign the note as security, and whether such note should be operative unless such party did sign it, is disputed.
Appellant went to Jacksonville, and with Caldwell went to his attorneys' office to get the old note, when Caldwell and his attorneys calculated the amount of the old note and interest, and after taking out the $1,500 payment, the note in suit was drawn up and Caldwell signed it. Appellant then took the note back to Waverly, where he lived, and went with it to Deatherage's house, presented it to him, and Mr. D. paid him $1,500 in cash. Appellant then handed him both notes; he said he would get appellee to sign the note. The note was to be returned signed. About an hour afterwards Mr. D. met appellant on the sidewalk and handed him the note in suit as it now appears. The note was then deposited by consent of appellant with one Barrett at his store for another signature, where it laid for about two months and no signature was procured, when appellant called for the note and took it up.
It is contended by appellee that it was expressly agreed by him and his co-defendants, and that was the sole consideration of his signing the note, that before...
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