Jones v. Albee

• Citation: 70 Ill. 34,1873 WL 8542
• Parties: K. K. JONESv.H. A. ALBEE.
• Decision Date: 30 September 1873
• Court: Supreme Court of Illinois

70 Ill. 34

1873 WL 8542 (Ill.)

K. K. JONES

v.H. A. ALBEE.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Superior Court of Cook county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

Mr. W. J. DURHAM, for the plaintiff in error.

Messrs. WALKER, DEXTER & SMITH, for the defendant in error.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of assumpsit, brought in the Superior Court of Cook county, by H. A. Albee against K. K. Jones.

At the July term, 1873, the cause was tried before a jury, and verdict rendered in favor of the plaintiff for $2984.96. The defendant brings the case to this court by writ of error, and asks a reversal of the judgment.

The record shows this suit was brought on a written guaranty upon a promissory note, which read as follows: “ September 27 th, 1870.

One year after date, for value received, I promise to pay to H. A. Albee two thousand three hundred and twenty-six dollars and thirty-one cents, with interest at ten per cent per annum.

M. A. CUSHING.”

Indorsed, “For value received I hereby guaranty the payment of the within note at maturity.

K. K. JONES.”

The first point relied on by the defendant, in his argument, is, the court erred in sustaining a general demurrer to an additional plea, and fourth plea by him filed to plaintiff's declaration. The only material allegation in the additional plea is this: “Defendant avers that the plaintiff caused and procured the defendant to enter into the said agreement, and indorse the said note, and promise as in the said declaration alleged, and the defendant was induced to enter into and make the said agreement and promise, and indorse said note, through and by means of the fraud, covin and misrepresentation of the plaintiff, and others in collusion with him.”

This plea can not be sustained by any well settled authority on pleading. If the defendant desired to rely on fraud, the facts constituting the fraud should have been set out in the plea. This we understand to be a well settled rule of pleading. Slack v. McLagan, 15 Ill. 249.

The substance of the fourth plea is, that the defendant bought a manufacturing business and patent right of the plaintiff. The price to be paid was what they had cost the plaintiff, and that the plaintiff falsely said they cost $7326.31, which the defendant paid, in cash, $5000, and the balance by indorsing the note sued upon; that the plaintiff agreed, by parol, at the time the note was indorsed, not to hold the defendant on the indorsement for more than such actual cost, while in truth and in fact the cost of the manufacturing business and patent right was but $3300.

We are aware of no principle of law upon which this plea can be sustained. The indorsement of this note was a written contract. The pleader sets up a parol contract made at the same time, by which he seeks to change the liability of the indorser, which was absolute.

The rule that parol evidence can not be admitted to contradict or change a written contract, is based on the soundest principles of public policy, and we regard a strict enforcement of this rule to bills of exchange and promissory notes, as very important to the commercial interests of the country.

In the case of Mason v. Burton, 54 Ill. 354, this court held, in an action by an indorsee against the indorser, and where the note was indorsed in blank, that the legal effect of the indorsement was, a written contract, which could not be impaired by parol proof of a verbal agreement, made at the same time of the indorsement, to the effect that the indorser should not be held responsible.

There are only a few classes of cases that form an exception to the rule stated. In a suit by the indorsee against the indorser, it might be shown that the indorsee held as an agent for the indorser, and, of course, could take no interest, and would have no right to maintain suit.

Or, it might be shown the note was indorsed for some special purpose, and is holden in trust, as, where a client would indorse to his attorney for collection merely.

Or, it might be shown that a note had been sold on a contract by which reliance was to be placed solely on the responsibility of the maker, and the indorsement was merely to transfer the title under the contract, and that an attempt to hold the indorser was a fraud.

These cases may be considered as an exception to the general rule; but the plea in this case does not fall within the principle of any of these excepted cases.

The case of Scammon v. Adams, 11 Ill. 576, cited by defendant, does not sustain his position. The question there was, in what character the indorsee held the note, whether as owner, or agent, or trustee. The case fairly falls within one of the exceptions named. Neither is the case of Van Buskirk v. Day, 32 Ill. 260, cited by defendant, in point. The question there decided is, under a proper plea of fraud to a note, that parol proof was admissible to show that the note was procured through fraud and false representation.

The next point made by the defendant is, that the court erred in excluding from the consideration of the jury the evidence of Bangs and Jones.

This was proper. Bangs and Jones testified to representations made by Cushing. This evidence the court excluded, for the very good reason that the plaintiff was not in any manner bound by the declarations or statements Cushing might make. There is no evidence in the record that Cushing was the agent of the plaintiff, or had any authority to do or say anything for him.

The only remaining question raised by defendant is, that Josiah McRoberts, judge of the seventh judicial circuit, had no authority to preside as judge in the Superior Court of Cook county.

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