Hewett v. Johnson

• Decision Date: 30 June 1874
• Citation: 72 Ill. 513,1874 WL 8872
• Parties: MILES HEWETTv.JOHN T. JOHNSON.
• Court: Illinois Supreme Court

72 Ill. 513

1874 WL 8872 (Ill.)

MILES HEWETT

v.JOHN T. JOHNSON.

Supreme Court of Illinois.

June Term, 1874.

APPEAL from the Circuit Court of Jefferson county; the Hon. TAZEWELL B. TANNER, Judge, presiding.

Messrs. CASEY & DWIGHT, for the appellant.

Messrs. POLLOCK & KELLER, for the appellee. Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of assumpsit, brought by appellant in the circuit court of Jefferson county, against appellee, on a promissory note, dated February 5, 1870, due in eight months after date, for $250, with ten per cent interest, given by John T. Johnson to Jas. B. Drake. The note was assigned to appellant without recourse, and the indorsement is without date, but the proof showed it was transferred before due.

Appellee pleaded the general issue, and that the making of the note was obtained by fraud. Issues were formed upon these pleas, a trial was had before a jury, and a verdict returned in favor of appellee, upon which the court rendered judgment. Appellant brings the case here, and insists upon a reversal of the judgment upon the following grounds:

First--The court erred in refusing appellant's third, fourth and seventeenth instructions.

Second--In giving appellee's first, third, fourth, fifth and sixth instructions.

Third--The court erred in overruling the motion of appellant for a new trial.

The refused instructions are as follows:

“3. If you believe, from the evidence, that Hewett, the plaintiff, purchased the note here sued on before the same was due, for a valuable consideration, and without notice of any defense against the same, and that, at the time of such purchase, said Hewett, plaintiff, was sick, and was some fifteen or twenty miles distant from defendant, then the law did not require said plaintiff, Hewett, under the circumstances, to use the diligence of going to see defendant before he, plaintiff, purchased said note.”

“4. That if you believe, from the evidence, that before the execution of the note here sued on, defendant himself was and had been engaged in the vending of patent rights in this part of the country, then greater diligence would be expected and required of him than of a man who had not been so engaged.” “17. That if you believe, from the evidence, that defendant, Johnson, admitted to William Stoker that he gave the note, you have a right, if you believe said evidence, to find for plaintiff.”

We are at a loss to perceive how the third instruction could, if given, have had a bearing on any legitimate issue involved in this case. The statute declares: “If any fraud or circumvention be used in obtaining the making or executing of a promissory note, such fraud or circumvention may be pleaded in bar to any action to be brought on such instrument so obtained, whether such action be brought by the party committing such fraud or circumvention, or any assignee of such instrument.”

Appellee did not, by his pleas or proof, raise the question that appellant had notice, when he purchased the note, of any fact calculated to cast suspicion upon it. He relied solely upon the defense given by the statute, which, when established, would defeat the note in the hands of an innocent holder as well as if it was held by the original payee.

The instruction being foreign to any issue involved in the case, the court did not err in refusing to give it to the jury.

As to the fourth refused instruction, we are aware of no rule of law that would require a person engaged in one branch of business to use more diligence than one having some other occupation or calling. A rule of that character would neither be just nor reasonable.

The seventeenth instruction was properly refused. It was the duty of the jury, in making their verdict, to consider all the evidence together, and from the evidence, as a whole, determine who was the meritorious party. This instruction singled out an isolated fact and brought it prominently before the jury, which would have a tendency to mislead; and it is always proper for the court to protect a jury from an unfair instruction of this character.

In regard to the second point relied upon by appe...