Johnson v. Glover

• Decision Date: 25 January 1887
• Citation: 10 N.E. 214
• Parties: JOHNSON v. GLOVER.
• Court: Illinois Supreme Court

10 N.E. 214

JOHNSON

v.GLOVER.

Supreme Court of Illinois.

January 25, 1887.

Appeal from appellate court, First district.

Assumpsit by Joseph O. Glover, appellee, against Jacob Johnson, appellant, on a promissory note, made by Nelson & Bullen, payable to the order of Jacob Johnson, of which the following is a copy:

‘$1,500.

CHICAGO, MARCH 6, 1883.

‘Ninety days after date we promise to pay to the order of Jacob Johnson fifteen hundred dollars, payable at 236 South Water street. Value received.

‘NELSON & BULLEN.

‘No. ___. Due _____.’

On the back were the following indorsements:

‘JACOB JOHNSON.

‘For value received I hereby guarantee payment of the within note.

‘JACOB JOHNSON.

‘Pay the Union National Bank, Chicago, or order, for collection on account of First National Bank, Ottawa, Ill.

J. F. NASH, Cashier.'

The note should not have been admitted in evidence. It was not a copy of the instrument in writing on which the action was brought, as provided by law, (Practice Act, § 18,) the indorsement of the First National Blank of Ottawa, Illinois, to the Union National Bank of Chicago, for collection, having been left off the copy filed. A note, with a place of payment, described in the narr without a place of payment, cannot be offered in evidence under special counts. Hodge v. Fillis, 3 Camp. 463; Sebree v. Dorr, 9 Wheat. 558;Lowe v. Bliss, 24 Ill. 169.

Parol evidence should not have been allowed to vary the blank indorsement of the payee on the back of the note. Beattie v. Browne, 64 Ill. 361;Mason v. Burton, 54 Ill. 349;Jones v. Albee, 70 Ill. 37:Skelton v. Dustin, 92 Ill. 52;Dietrich v. Mitchell, 43 Ill. 40;Boynton v. Pierce, 79 Ill. 146;Schnell v. North Side Planing-mill Co., 89 Ill. 582;Worden v. Salter, 90 Ill. 165;Wallace v. Goold, 91 Ill. 19;Courtney v. Hogan, 93 Ill. 104;Windheim v. Ohlendorf, 3 Bradw. 436.

The legal title in the note was in the First National Bank of Ottawa, and the indorsement on the note being for collection merely, and for no other purpose, did not transfer the title. Best v. Nokomis Nat. Bank, 76 Ill. 610;Barker v. Prentiss, 6 Mass. 430; Edw. Bills, § 203; Newman v. Ravens-croft, 67 Ill. 496;Burnap v. Cook, 32 Ill. 172;Day v. Humphrey, 79 Ill. 453;Caldwell v. Lawrence, 84 Ill. 161.

Being overdue was notice of its payment, and even a bona fide holder could not hold the indorsers, when paid at maturity. Gordon v. Wansey, 21 Cal. 77;Gardner v. Maynard, 7 Allen, 456; 2 Daniel, Neg. Inst. § 1238; Shinn v. Fredericks, 56 Ill. 439;Reichert v. Koerner, 54 Ill. 307;Burnap v. Cook, 32 Ill. 172. Payment at or after maturity to the legal holder extinguishes the instrument.

The court admitted, under the general issue, all the evidence offered by the defendant. Hence the defendant was deprived of no meritorious defense by the ruling of the court refusing him to allow him to file pleas of failure of consideration. Under such circumstances, the higher court will not reverse. Millikin v. Jones, 77 Ill. 372;Addems v. Suver, 89 Ill. 482;Cooke v. Preble, 80 Ill. 381. When the record fails to show that the defendant was deprived of any evidence admissible under such pleas, the error, if any, affords no ground for reversal. McAllister v. Clark, 86 Ill. 236.

Under the common counts, if the declaration contained them, a promissory note of any date or description could be introduced in evidence upon proof of its execution as at common law. Instruments, though variant from special count, can be introduced under common counts. Streeter v. Streeter, 43 Ill. 155;Gilmore v. Nowland, 26 Ill. 200;Ellsworth v. Brewer, 11 Pick. 315;State Bank v. Hurd, 12 Mass. 171;Martin v. Farnum, 24 N. H. 191;Rockfeller v. Robinson, 17 Wend. 206.

The guaranty on a promissory note is general, and runs with the instrument, and partakes of its negotiability. Webster v. Cobb, 17 Ill. 459.

A note may be negotiated on second day of grace, and the holder will then be protected. Pars. Notes & Bills, 416; Edw. Notes & Bills, § 716. Notes are entitled to days of grace, and not due until after days of grace expired. Rev. St. c. 98, § 15; McCoy v. Babcock, 1 Bradw. 414;Roberts v. Corby, 86 Ill. 182;Reese v. Mitchell, 41 Ill. 365;Collins v. Montemy, 3 Bradw. 182.

Henry W. Magee, for appellant.

Jameson, Marston & Augur, for appellee.

SCOTT, C. J.

This suit was brought by Joseph O. Glover against Jacob Johnson on the alleged guaranty of a promissory note for the sum of $1,500, made by Nelson & Bullen, dated at Chicago March 6, 1883, and payable, to the order of defendant, ‘at 236 South Water street’ 90 days after date. The declaration contains special counts on an alleged guaranty, and also the common counts. When the note, with a guaranty upon it, was offered in evidence, it was objected there was a variance between the declaration and the note declared upon in this: the note was declared upon as being payable generally, whereas it was specifically made payable ‘at 236 South Water street.’ That objection seems to have been sustained, and thereupon plaintiff took leave to so amend his declaration as to obviate the objection taken, but no amendment was ever in fact made, so that, so far as the present trial is concerned, it was had upon the common counts of the declaration as though there were and never had been any special counts in the declaration. Before the note and guaranty of defendant could be given in evidence, it was necessary the signature of defendant to the alleged guaranty should be proved; that the guaranty was written over the signature in pursuance of a contract to that effect, and that it was made upon a sufficient consideration. Treating the declaration, as should be done, as containing only the common counts, it was not necessary defendant should deny, by plea verified by affidavit, the execution of the guaranty written on the back of the note. The general issue pleaded to the common counts raised that issue. Defendant cannot be called upon to deny under oath the execution of any written instrument until it is alleged by some appropriate pleading that he has made such instrument.

Under the common counts, the burden of proving the guaranty of defendant of the note made by Nelson & Bullen was, of course, upon plaintiff. That was the vital point in the case, and it should have been proved by a preponderance of the evidence to entitle plaintiff to a verdict. On this branch of the case the witness Carton gave the principal testimony. It seems the name of defendant appears twice written upon the back of the note, and concerning them the witness stated he recognized both signatures as that of defendant; and then the witness was permitted, against the objection of defendant, to testify ‘the second signature was put on...