Heartt v. Rhodes
| Decision Date | 30 September 1872 |
| Citation | 66 Ill. 351,1872 WL 8578 |
| Parties | CHAUNCEY B. HEARTTv.GEORGE H. RHODES. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. LAMBERT TREE, Judge, presiding.
Messrs. STORY & KING, for the appellant.
Mr. O. B. SANSUM, and Mr. JAMES LEDDY, for the appellee. Mr. JUSTICE SHELDON delivered the opinion of the Court:
This was a suit by Rhodes, the plaintiff below, against Heartt, upon an accommodation note made by the latter to John H. Dickson, on the 22d of August, 1870, for the sum of $380, payable five months after date, with interest at the rate of ten per cent per annum. Dickson indorsed the note to one Foster for $380. About January 12, 1871, Foster indorsed the note to plaintiff, who gave to Foster for it plaintiff's own promissory note for $400, payable January 25, 1872. February 7, 1871, Dickson paid $200 to plaintiff on account of the note.
April 3, 1871, plaintiff delivered up the note to Dickson, who gave the former his (Dickson's) check on the National Bank of Commerce for $201.72, the balance then due upon the note.
Within two or three days afterward the check was presented at the bank, and payment refused for want of funds of Dickson wherewith to pay it.
At the time of giving the check, Dickson had only $23.40 in the bank, and at no time afterward had there to exceed $75.
The plaintiff recovered, and defendant has appealed. Various reasons are urged for the reversal of the judgment.
Objection is made that a recovery by the plaintiff was permitted, while he retained the check of Dickson, upon which he may collect the amount a second time.
We do not consider such to be the fact. The check was produced in court, and there left, where it has since remained among the files of the court. The plaintiff's deposition was taken in the case, to which he annexed the check, which was returned into court with the deposition, and remains there as a part of it.
The production of the check was in nowise essential to the making out of the plaintiff's case, and we may consider that it was annexed to, and returned with, the deposition, for the purpose of being surrendered or cancelled. It, to be sure, was not formally cancelled, but we must regard it as virtually so.
It is neither in the plaintiff's possession nor power, but in the custody of the court, and can not be withdrawn by the plaintiff, unless by leave of the court. Such leave should not be granted; and it is to be presumed the court will not permit plaintiff to withdraw the check.
No intimation of such an objection to a recovery was made in the court below. Had there been, it would doubtless have been removed at once, by formally surrendering or cancelling the check.
A general objection is made of the admission of improper evidence, without insisting upon or pointing out any particular evidence as being improperly admitted. We fail to discover, from the record, any essential error in this respect.
It is insisted there was error in giving these instructions for plaintiff, viz:
“The court instructs the jury that the burden of proof is upon the defendant to prove, by evidence preponderating in his favor, that the money mentioned in the promissory note in suit has been paid to plaintiff.
The jury are instructed that the fact that Foster did not present the check in question to the bank for payment until two or three days had elapsed after it was drawn, can not affect the plaintiff's right to recover, if the jury shall believe from the evidence, that Dickson, the drawer of the check, had not sufficient funds in bank to meet the check.”
The want of due presentment, or notice of the dishonor of a check, does not discharge the drawer unless he has suffered some loss or injury thereby. This is one point of difference between a check and a bill of exchange. Story on Prom. Notes, sec. 492. There is no pretence of any such loss or injury in this case.
But the more especial objection which is urged against the instructions is, that they excluded from the jury the question of the execution of the note, and assumed the existence of that disputed fact. There was a plea in, denying the execution of the note, verified by affidavit.
But the defendant's own testimony amounted to an admission of the execution of the note. In giving his testimony he said, “I signed a note like one spoken of here.” There was other evidence of his implied admission of the execution of the note, arising from his statements in reference to it, on being applied to for payment. There was no contrary evidence whatever, as to the execution of the note. In view of the defendant's own admission on the subject in his...
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Dille v. White
...on Sales (2d Ed.) § 729; Loeschigh v. Blun, 1 Daly (N. Y.) 49; Bill v. Porter, 9 Conn. 23;Davidson v. Bridgeport, 8 Conn. 473;Heartt v. Rhodes, 66 Ill. 351. In Huse v. McDaniel, 33 Iowa, 406, the plaintiff sold land and took in part payment therefor certificates of deposit. These certificat......
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Dille v. White
... ... (2d Ed.) section 729; Loeschigh v. Blun, 1 Daly 49; ... Bill v. Porter, 9 Conn. 23; Davidson v ... Bridgeport, 8 Conn. 472; Heartt v. Rhodes, 66 ... Ill. 351 ... In ... Huse v. McDaniel, 33 Iowa 406, the plaintiff sold ... land and took in part payment ... ...
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