Irwin v. Atkins

• Court: United States Appellate Court of Illinois
• Writing for the Court: BAKER, P. J.
• Citation: 12 Bradw. 431,12 Ill.App. 431
• Parties: JOHN G. IRWIN, Administrator, etc.,v.AMOS ATKINS ET AL.
• Decision Date: 28 February 1883

12 Ill.App. 431
12 Bradw. 431

JOHN G. IRWIN, Administrator, etc.,
v.
AMOS ATKINS ET AL.

Appellate Court of Illinois, Fourth District.

February Term, 1883.

[12 Ill.App. 431]

ERROR to the Circuit Court of Madison county; the Hon. WILLIAM H. SNYDER, Judge, presiding. Opinion filed April 13, 1883.Messrs. KROME & HADLEY, for plaintiff in error; that the taking of a promissory note for a pre-existing debt or contemporaneous consideration is treated, prima facie, as conditional

[12 Ill.App. 432]

payment only, cited Morrison v. Smith, 81 Ill. 221; Miller v. Lumsden, 16 Ill. 161; McConnell v. Stettinius, 2 Gilm. 707; Wood v. Merchant's Savings Co. 41 Ill. 267; Alcott v. Rathburn, 5 Wend. 490; Flower v. Elwood, 66 Ill. 438.

If the holder of a note agrees to release the principal upon the payment of one half the amount due, and such payment is made, neither the principal nor surety is discharged from the balance of the note: Brandt on Suretyship, § 288; Obendorff v. Union Bank, 31 Md. 126.

The effect of novation is that the prior obligation, together with its accessions and privileges, is destroyed, but novation will not take place if the second obligation is void: Brandt on Suretyship, § 290; Mitchell v. Colton, 2 Fla. 130; Williams v. Gilchrist, 11 N. H. 535; 2 Parsons on Notes and Bills, 527.

When the matter, be it ever so well pleaded, can signify nothing, judgment may be given as by confession: Woods v. Hynes, 1 Scam. 104; Stacker v. Hewitt, 1 Scam. 207; Hitchcock v. Haight, 2 Gilm. 604.

Messrs. WISE & DAVIS, for defendants in error; that when the evidence is conflicting as to the nature and extent of a contract, the verdict of the jury in settling the facts will not be disturbed, cited Clifford v. Luhring, 69 Ill. 401; T. W. & W. R'y Co. v. Elliott, 76 Ill. 67; Hewitt v. Estelle, 92 Ill. 218; Smith v. Bingham, 3 Bradwell, 65; C. B. & Q. R. R. Co. v. Lee, 87 Ill. 454; Calvert v. Carpenter, 96 Ill. 63; Conn. Mut. Life Ins. Co. v. Ellis, 89 Ill. 516; Blake v. McMullin, 91 Ill. 32; Addems v. Suver, 89 Ill. 482.

As to the legal effect of a settlement: White v. Campbell, 25 Mich. 468; Ashley v. Hill, 6 Conn. 246; Bass v. Bass, 8 Pick. 187; Niles v. Harmon, 80 Ill. 396; Strauber v. Mohler, 80 Ill. 21; Bull v. Harris, 31 Ill. 487; Stuphen v. Cushman, 35 Ill. 199; 2 Greenl. on Ev. § 128; McClelland v. West, 70 Penn. 183; Throop v. Sherwood, 4 Gilm. 98; Holmes v. DeCamp, 1 Johns. 34; Forrester v. Allanson, 1 Tenn. 479; Fitch v. Haight, 4 Scam. 52; Wickencamp v. Wickencamp, 77 Ill. 97.

[12 Ill.App. 433]

Instructions must be based upon the evidence: I. & St. L R. R. Co. v. Miller, 71 Ill. 463; I. B. & W. R'y Co. v. Birney, 71 Ill. 391; Geary v. O'Neal, 73 Ill. 593; Piner v. Cover, 55 Ill. 391.

Instructions presenting only a partial view of the facts are objectionable: Chittenden v. Evans, 48 Ill. 52; C. B. & Q. R. R. Co. v. Griffin, 68 Ill. 499; Ogden v. Kirby, 79 Ill. 555; Evans v. George, 80 Ill. 51.

BAKER, P. J.

May 2, 1870, Atkins and Job executed and delivered to Josiah K. Gillham, administrator of John G. Gillham, deceased, a promissory note for $470, due nine months after date, with interest at ten per cent. from maturity. Atkins was principal and Job was surety. The note was subsequently lost or mislaid, and on the 29th of October, 1872, Gillham made an affidavit before a justice of the peace, Job being present, of the loss of this note, and of two other notes that he held against Atkins individually. In February, 1873, Atkins and Gillham had a settlement, in the presence of M. D. Moore, of their mutual accounts, the claims each held against the other. At this settlement Atkins paid some money to Gillham; and Gillham surrendered to Atkins two notes (other than that here in suit), and handed him the affidavit spoken of above; and Atkins wrote across the face of the affidavit these words: “February...