Holm v. Jamieson

• Court: Illinois Supreme Court
• Writing for the Court: PHILLIPS
• Citation: Holm v. Jamieson , 173 Ill. 295, 50 N.E. 702 (Ill. 1898)
• Decision Date: 21 April 1898
• Parties: HOLM v. JAMIESON et al.

173 Ill. 295

50 N.E. 702

HOLM

v.JAMIESON et al.¹

Supreme Court of Illinois.

April 21, 1898.

Error to appellate court, First district.

Action by John Holm against Egbert Jamieson and another upon the guaranty of the payment of a promissory note. From a judgment of the appellate court (69 Ill. App. 119) reversing a judgment in favor of plaintiff, he brings error. Reversed.James Frake and B. W. Ellis, for plaintiff in error.

John A. Rose (Francis A. Riddle, of counsel), for defendants in error.

PHILLIPS, C. J.

On May 16th, at Chicago, Ill., the Great Western Wire Works, by E. B. Filkins, treasurer, executed its note for $1,500, due 60 days after date, payable to itself, with 6 per cent. per annum interest after maturity, with power of confession and judgment, which note was indorsed: ‘Pay to the Central Trust and Savings Bank or order. Great Western Wire Works, by E. B. Filkins.’ This note came to the hands of John Holm, who brought suit on the guaranty indorsed thereon, which is as follows: ‘I hereby guaranty the prompt payment of the within note. E. A. Filkins. Egbert Jamieson.’ The declaration alleges that, upon the consideration that the Central Trust & Savings Bank would discount the note if the defendants would guaranty the prompt payment thereof, the defendants, for the consideration aforesaid, did guaranty the payment of the same to the Central Trust & Savings Bank. That bank, relying upon the guaranty of the defendants, discounted the note for the maker. After the guaranty of the note by Filkins and Jamieson, and its indorsement to the Central Trust & Savings Bank, that bank made a second indorsement thereon as follows: ‘Pay to John Holm or order. Central Trust and Savings Bank, by W. A. Paulsen.’ John Holm having brought suit on the guaranty indorsed on said note, against Egbert Jamieson, one of the guarantors, the latter appeared, and filed a plea of general issue and a special plea, in which it was set forth that William Holland, Merchant & Co. (a corporation), and other corporations and individuals filed their bill of complaint against the Great Western Wire Works, Sadie H. Filkins, Edward A. Filkins, John Holm, Charles B. Morrow, and Edward B. Filkins, in which it was averred that a note held by John Holm and numerous other notes similarly executed were fraudulent and void because of the fact that there was no authority in the treasurer to execute the same, and asking the cancellation of the judgment heretofore entered on said note of John Holm, and that said notes be declared fraudulent and void, and be canceled and surrendered, and that judgment entered upon the said notes so executed be vacated and annulled. A decree was entered on the hearing, in accordance with the prayer of the bill, and these facts by the special plea are averred. It is therein further averred that the contract of guaranty was written on paper on which said fraudulent and void promissory note was written, without any other or different consideration than the consideration for the said promissory note, which promissory note was declared to be fraudulent and void, and decreed to be canceled, and the plea further averred that said decree was in full force. To this special plea a demurrer was interposed, and a stipulation entered into by the parties to the declaration, by which it was agreed that the said special plea of Jamieson should be adopted as the plea of Filkins, and that the plaintiff will stand by his demurrer to his special plea, and, if the demurrer is overruled, the judgment to go for the defendants, and that the defendants agree to stand by their special plea, and, if the demurrer thereto is sustained, the judgment shall be entered for the plaintiff, and the plea of general issue be withdrawn. The trial court sustained the demurrer to the special plea, and entered judgment for the plaintiff, to which exception was taken; and on appeal to the appellate court for the First district that judgment was reversed, and judgment entered in the appellate court for the defendants, from which this appeal is prosecuted.

It is insisted, first, by the appellant, that the decree set up in the plea by which the note on which the guaranty was indorsed, and which was the basis of this action, was not res judicata as to the defendant Jamieson, who was...