John D. Easter v. Minard

• Decision Date: 30 April 1861
• Parties: JOHN D. EASTER, impleaded with Chas. G. Scott, Plaintiff in Error,v.IRA MINARD, Defendant in Error.
• Court: Illinois Supreme Court

26 Ill. 494
1861 WL 4187 (Ill.)
16 Peck (IL) 494

JOHN D. EASTER, impleaded with Chas. G. Scott, Plaintiff in Error,
v.
IRA MINARD, Defendant in Error.

Supreme Court of Illinois.

April Term, 1861.

Error to Kane.

1. If fraud and circumvention are used to procure the execution of a note, and the payee is informed of it, it is void. It is otherwise in reference to fraud in the consideration of the note.

2. If it appears that a suit on a note is brought in the name of a person who is not the beneficial holder, the same defense can be made as if the suit were in the name of the payee.

THIS suit was commenced by defendant in error against the plaintiff in error, in assumpsit, upon a promissory note signed by the plaintiff in error and Charles G. Scott, and tried at the May term, A. D. 1860, of the Kane circuit court, I. G. WILSON, Judge, presiding, and a jury. The note was joint and several. The plaintiff in error joined with Scott, and filed a plea of the general issue, and John D. Easter filed his two separate special pleas, in which he set up that the execution of said note was obtained from him by fraud and circumvention. To the first special plea the defendants in error joined issue, and filed a general demurrer to the second special plea. The plaintiff in error joined issue on said demurrer, and gave judgment against said second special plea, by

[26 Ill. 495]

which said plea plaintiff in error elected to stand.

There was judgment for Minard in the circuit court.

C. B. Wells, for plaintiff in error.

W. D. Barry, for defendant in error.

WALKER, J.

The third plea filed by the appellant avers, that the note sued upon was obtained of him by fraud and circumvention. That both the payee and the principal, to induce him to execute it as security, falsely, fraudulently and collusively agreed and promised, that one Parks should execute the note as cosecurity, and that unless he should execute the note, it should not be delivered to, or received by the payee, and that relying upon the agreement, he executed it as such security, but that in fraud of the agreement the note was delivered to, and received by the payee, although Parks did not execute it. To this plea a demurrer was interposed, which was sustained by the court, and appellant abided by his plea, and assigns the judgment of the court as error.

This then, presents the question, whether these facts show that fraud and circumvention were used in obtaining the making or execution of the note. Representations affecting...