Hubbard v. Rankin

• Decision Date: 30 September 1873
• Citation: 71 Ill. 129,1873 WL 8698
• Parties: BENJAMIN T. O. HUBBARDv.THOMAS RANKIN, SR.
• Court: Illinois Supreme Court

71 Ill. 129

1873 WL 8698 (Ill.)

BENJAMIN T. O. HUBBARD

v.THOMAS RANKIN, SR.

Supreme Court of Illinois.

September Term, 1873.

APPEAL from the Circuit Court of Warren county; the Hon. ARTHUR A. SMITH, Judge, presiding.

This was an action of assumpsit, by Hubbard against Rankin, upon a promissory note, which was indorsed to the plaintiff. The defendant, in his pleas, set up that the execution of the note was procured through fraud and circumvention. The other material facts are sufficiently stated in the opinion of the court. The defendant recovered judgment for costs, and the plaintiff appealed.

Mr. JOHN J. GLENN, for the appellant.

Messrs. STEWART, PHELPS & STEWART, for the appellee.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

The real question tried was, whether the execution of the note sued on was obtained by fraud or circumvention. Appellant sued as assignee. If the execution of the note was obtained by fraud, it was immaterial whether appellant had notice of the defense or not, and it was immaterial whether appellee offered to restore everything he received under the contract he supposed he was making. If so obtained, the instrument was simply void, because appellee never made it. The mind did not accompany the act, and the statute authorizes the defense to be made against a bona fide holder.

Appellee appeared before the jury and gave evidence touching the transaction. It purported to be the act of merely appointing him as agent for the sale of Pool's Patent Grain Separator. As he states it, no note was mentioned, and, on his part, thought of or intended. The evidence, on his part, tends to establish every element of the defense, and the absence of negligence. It is true, the deposition of Davis, the man who perpetrated the fraud, if there was one, was taken in Kansas, and his version of the affair is in conflict with that of appellee. But the latter was before the jury, and his appearance and manner may have been well calculated to inspire confidence in the jury as to the truth of his testimony. The other was absent. The jury could not see him, and he was under the motive of self-exculpation. Counsel says, there was no preponderance of evidence for appellee. A rule which places all witnesses upon the same arbitrary plane, which ignores all actual distinction between the honest and vicious, between the veracious and mendacious, upon the witness stand, and says to the jury: “if two witnesses to the same...