Hunter v. Clarke

• Decision Date: 19 February 1900
• Citation: 184 Ill. 158,56 N.E. 297
• Parties: HUNTER v. CLARKE.
• Court: Illinois Supreme Court

184 Ill. 158

56 N.E. 297

HUNTER

v.CLARKE.

Supreme Court of Illinois.

Feb. 19, 1900.

Appeal from appellate court, Third district.

Action by Sarah J. C. Clarke against John B. Hunter. From a judgment of the appellate court reversing a judgment for defendant (83 Ill. App. 100), he appeals. Affirmed.

James M. Graham and Beach & Hodnett, for appellant.

Humphrey, McAnulty & Allen, for appellee.

CARTWRIGHT, J.

Sarah J. C. Clarke, appellee, brought this suit in assumpsit in the circuit court of Sangamon county against John B. Hunter, appellant, upon a principal note and two interest notes given for semiannual interest thereon. The principal note declared on is as follows: ‘$5,000. Springfield, Ill., February 20, 1889. On March 1, 1894, after date, value received, for money loaned, I promise to pay to the order of Edward T. Oliver five thousand dollars, with interest on the same at the rate of eight per cent. per annum, after due, until paid, according to the tenor of a certain mortgage deed bearing even date herewith, given by John B. Hunter and wife to Edward T. Oliver. Payable at the State National Bank, with exchange. John B. Hunter.’ Plaintiff also set out the mortgage mentioned in said principal note, which secured the same and the notes given for interest up to its maturity. The mortgage provides that, in case of the neglect or refusal to pay any of said notes when due, or in case of waste or nonpayment of taxes and assessments, or neglect to insure or keep insured the buildings on the mortgaged premises for the benefit of the mortgagee, the principal note, with all accrued interest thereon, should become due and payable at the option of the legal holder thereof, and the mortgage might then be foreclosed. Defendant pleaded the general issue and payment, and to the latter plea there was a replication denying payment. A jury was waived, and there was a trial before the court, resulting in a finding and judgment for defendant. Plaintiff appealed to the appellate court, and that court reversed the judgment of the circuit court, and rendered final judgment for the amount due by the terms of the note, incorporating in its judgment the following finding of facts: ‘We find that at the time the appellant purchased the instrument sued on the same was not due; that no part of the principal had ever then been paid; that the amount of $3,000 remitted by Caleb K. Lucas to Brinkerhoff & Oliver to be applied on the note was never in fact paid to the holder of the note; that in receiving such remittance Brinkerhoff & Oliver were the agents of Lucas; and that appellant, at the time of receiving the note, had no notice of such remittance. And the court further finds that there is now due appellant upon said note the sum of $3,945.’ At the trial it was not disputed that the plaintiff purchased the note in good faith, before maturity, for its face value, with accrued interest, without notice of any payment or defense, as found by the appellate court. The next finding-that no part of the principal had been paid when plaintiff purchased the note, and that Brinkerhoff & Oliver were agents of Lucas in receiving money to be applied on the note-is a conclusion of fact upon the controversy raised on the plea of payment. The evidence on that subject tended to prove the following facts: Defendant borrowed the amount of the note from Brinkerhoff & Oliver, a firm of which Edward T. Oliver was a partner. Shortly after the note and the mortgage were made, the payee, Edward T. Oliver, sold and delivered the same to David Saunderson, trustee, and indorsed the note. The defendant, Hunter, maker of the note, sold the land, and on April 15, 1891, Caleb K. Lucas, owner of the premises, applied to Brinkerhoff & Oliver for the privilege of making a payment of $3,000, although the note was not due. They told Lucas they would let him know in a week or two, and afterwards wrote him that they had made arrangements for him to make the payment, and on the receipt of $3,120 would credit the principal note with $3,000 and interest on the same to May 1, 1891. The balance to be remitted consisted of a charge of 1 per cent. on account of prepayment. On April 27, 1891, Lucas remitted by draft to Brinkerhoff & Oliver the said sum of $3,120. The note was not credited with the payment, and they never accounted to Saunderson, or paid him the $3,000. They paid the interest on the full sum of $5,000 to Saunderson until February 18, 1892, when they repurchased the note and mortgage from him. Lucas continued to pay interest to Brinkerhoff& Oliver on the remaining $2,000 only. On March 18, 1892, Brinkerhoff & Oliver sold and assigned the note to plaintiff for $5,015. On November 10, 1893...