Homes v. Hale
| Decision Date | 31 January 1874 |
| Citation | 1874 WL 8720,71 Ill. 552 |
| Parties | COLEMAN J. HOMESv.LEVI HALE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Clay county; the Hon. J. C. ALLEN, Judge, presiding.
Messrs. COPE & BOYLES, for the appellee.
Messrs. HENRY & HITCHCOCK, for the appellant.
Appellant brought suit, as assignee of the following instrument, to recover the amount claimed to be due thereon:
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¦“$160.¦April 28, 1871. ¦
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On the first day of September, 1871, (or before, if made out of the sale of J. B. Drake's horse hay rake or hay carrier,) I promise to pay James B. Drake, or order, one hundred and sixty dollars, for value received with use.
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¦GEORGE W. SHROYER. ¦LEVI HALE.”¦
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Indorsed:
The case was twice tried in the court below, the first trial resulting in a verdict for the plaintiff, and the last in a verdict for the defendant, upon which judgment was rendered, and to reverse which the plaintiff appeals to this court.
It does not appear, from the evidence, that the appellant is an indorsee in bad faith, or that he had notice of the existence of the facts interposed as a defense to the collection of the note, at the time it was assigned to him.
The material question presented by the pleadings, and upon which the evidence was heard, is, was Hale, the maker of the note, induced to execute it by fraud or circumvention?
The evidence is conflicting, and were we satisfied with the instructions given to the jury, it may be that we would not feel ourselves called upon to reverse the judgment. We can not, however, say that the evidence is so clearly with the defendant that substantial justice has been done, notwithstanding what we conceive to be error in the instructions. Although there may have been fraud and circumvention in the transaction between Hale and Drake, and Hale may have been induced to sign the note by the false and fraudulent representations of Drake's agent, as to its legal effect, and the liability which would thereby be imposed on him, still, if, when he signed it, he was acquainted with its language, or might have been by the exercise of ordinary prudence and caution, as against an indorsee before maturity and without notice, he is bound. The only question is, was its making or execution obtained by fraud or circumvention? Woods v. Hynes, 1 Scam. 103; Mulford v. Shepard, Id. 583; Adams v. Wooldridge, 3 Scam. 255; Latham v. Smith, 45 Ill. 25; Clarke v. Johnson, 54 Id. 296.
The second instruction given at the instance of the defendant is as follows:
“If the jury believe, from the evidence, that Rea, in the presence of Shroyer and others, stated to Levi Hale that if he, Hale, sold nothing he would be out nothing, or words to that effect, while they were negotiating, and that Rea and Shroyer positively swear that no such words were spoken in their presence, and at that time, by any one; and that if you further find, from a preponderance of the evidence, that Rea did so state at that time, then you are warranted in considering this as a strong circumstance touching the credibility of the witnesses, Rea and Shroyer.”
This instruction was calculated to mislead the jury, and it should have been refused.
Even if Rea, acting as the agent of Drake, did say that “if Hale sold nothing he would be out nothing, or words to that effect,” it would not follow that the note in suit had not been made or executed by Hale, or that its making or execution had been obtained by fraud or circumvention. At most, it would only tend to...
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