Howes v. Austin
| Decision Date | 30 April 1864 |
| Citation | 35 Ill. 396,1864 WL 3066 |
| Parties | ALLEN HOWESv.JOSHUA N. AUSTIN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Superior Court of Chicago.
Assumpsit by appellee, as endorsee, against appellant, as drawer of the following check:
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¦“No. 226.¦CHICAGO, May 14, 1861. ¦
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Chicago Marine and Fire Insurance, Co.: Pay to Lyman S. Knox, or order, eight hundred and seventy-four dollars.
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¦$874.¦ALLEN HOWES.” ¦
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Indorsed: “Pay the within to Joshua N. Austin, without recourse to me.
LYMAN S. KNOX.”
The pleadings and the judgment of non pros., as to the first and second counts of the plaintiff's declaration, are sufficiently stated in the opinion of the court.
Upon the trial of the cause upon the issue joined upon the plea of the general issue to the common counts of the plaintiff's declaration, the defendant objected to the admissibility of said check in evidence under said common counts; and also that the default entered against the plaintiff for not replying to the special plea in bar of the two special counts upon said check, in the plaintiff's declaration, created a bar to a recovery upon the check, under the common counts of said declaration. The check was, however, received in evidence, and exception taken by the defendant
Evidence was also introduced tending, among other things, to show the presentation of said check for payment on June 8, 1861, and the refusal of the bank on which it was drawn to pay the same, except in depreciated Illinois currency, the defendant having no other funds on deposit there at the date of the check or since, to meet said check, except such depreciated currency (of which, however, he had at all times between May 14th and June 8th, more than $874 on deposit), which the plaintiff refused to receive, and demanded current money; that a specie account would have been paid by the bank at any time between the date of said check and June 8, 1861, although on the latter date the bank was insolvent; that on August 25, 1861, said defendant checked out of said bank $874 ($262.25 in Illinois currency being then left to his credit), said check being paid by said bank, and defendant realizing thereon sixty-five cents per dollar; that the market value of said depreciated currency continued to depreciate, and was less on June 8, 1861, than on May 14th; that in the first part of the next week after June 8, 1861, plaintiff's attorney informed defendant that he would be looked to make said check good.
The court, subject to exceptions by defendant, instructed the jury on behalf of the plaintiff, in substance, as follows:
(1.) That the word “dollars,” in said check, meant dollars in lawful money of the United States, and could not be explained by verbal agreement, custom, or any mercantile or other usage, to mean otherwise; and that all evidence introduced to establish such custom or usage should be disregarded.
(2.) That depreciated bank notes were not lawful money of the United States. That the check in question called for $874 in lawful money of the United States, and was payable in coin if demanded, or in current money; and that if the jury found that on the date of said check, the only account kept by defendant with said bank was a depreciated paper money account, in terms, composed of depreciated Illinois or other bank notes, and that on this account said bank would, at all times, at and from the date of the check until its presentation on the 8th of June, 1861, have refused payment thereof in lawful money of the United States, or its equivalent, or in other funds than such depreciated paper; and that the holder of the check would have refused at all times to receive such depreciated bank notes, or other than lawful money, or its equivalent in par or current funds; and if they found that said bank, up to and on June 8, 1861, would have paid it in full, if it had been drawn against a deposit account or specie or par funds, in case defendant then had had such account; and if the jury further found that said check was presented for payment June 8, 1861, and payment thereof then demanded and refused by said bank, except in such depreciated bank notes, and that defendant was notified thereof, then the delay in presentment did not damage the defendant, and he was liable to plaintiff for the full amount of the...
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