Kayser v. Hall
| Decision Date | 30 June 1877 |
| Citation | 85 Ill. 511,1877 WL 9603,28 Am.Rep. 624 |
| Parties | HENRY KAYSERv.WILLIAM H. HALL, Admr. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Madison county; the Hon. WILLIAM H. SNYDER, Judge, presiding.
Mr. JOSEPH GILLESPIE, for the appellant.
Messrs. KROME & HADLEY, for the appellee.
Appeal was prosecuted to the circuit court of Madison county, from a judgment of the county court of that county, disallowing a claim in favor of appellant against the estate of John G. Smith, deceased. On trial being had in the circuit court, that court gave judgment, affirming the judgment of the county court, and to reverse this judgment the present appeal is prosecuted.
Appellant's claim is based upon a promissory note, and the indorsement thereof, in the words following:
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¦“$5000.¦March 28, 1871. ¦
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One year after date, I promise to pay to the order of myself five thousand dollars, for value received, negotiable and payable without defalcation or discount, and with interest from maturity, at the rate of ten per cent per annum.
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¦No. --.¦F. W. SMITH.” ¦
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Indorsed: “Interest paid to March 28, 1874. Waiving demand, protest and notice thereof.
F. W. SMITH.
JOHN G. SMITH.”
Appellant proved, by the evidence of F. W. Smith, the maker of the note, that the signatures indorsed were those of himself and father; that they were indorsed at the time the note was drawn, the words, “waiving demand, protest and notice,” being indorsed before their signatures; that he believed the credit was given by appellant to his father; that he himself had no property at the time, and appellant loaned him $5000 in money, at ten per cent interest, upon the name of his father. The evidence was received by the court, subject to objection to be thereafter considered, and no announcement was subsequently made in regard to the ruling of the court as to the admissibility of the evidence.
As the case was tried, by agreement of parties, by the court, without the intervention of a jury, we deem it necessary only to inquire whether the relation of the deceased, John G. Smith, to the note is, under the evidence, to be held as that of guarantor, or of indorser merely. If it shall be held to be the former, the judgment must be reversed; if the latter, it must be affirmed.
We think the ruling in Bogue v. Melick, 25 Ill. 91, and Blatchford v. Milliken, 35 Id. 434, applicable, and conclusive of the question.
The note being payable to the maker, it could have no validity until indorsed and transferred by him. He, when this was done, became the first indorser, and John G. Smith was the second indorser. It was said in the case last above cited: ...
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...for as such only he appears on the note after it has acquired validity as a contract. Blatchford v. Milliken, 35 Ill. 434; Kayser v. Hall, 85 Ill. 511. doctrine that when a person, not a party to a note, puts his name upon it before it is delivered as a valid contract, thereby makes himself......
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Hately v. Pike
...of the note, he intends to assume the responsibility of second indorser, and not of guarantor. Blatchford v. Milliken, 35 Ill. 434;Kayser v. Hall, 85 Ill. 511;Bogue v. Melick, 25 Ill. 91. And ‘an authority to fill out an undertaking over a signature is to be exercised consistently with the ......
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...be contradicted by oral testimony: Swartz v. Barnes, 11 Ill. 89; Osgood v. Blackmore, 59 Ill. 261; Welch v. Sykes, 3 Gilm. 197; Kayser v. Hall, 85 Ill. 511; Chambers v. Clearwater, 1 Abb. App. 341; Swiggart v. Harber, 4 Scam. 364; Buckmaster v. Carlin, 3 Scam. 104; McMillum v. Whelan, 27 Ca......
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...for as such only he appears on the note after it has acquired validity as a contract. Blatchford v. Milliken, 35 Ill. 434; Kayser v. Hall, 85 Ill. 511. The doctrine that when a person, not a party to a note, puts his name upon it before it is delivered as a valid contract, he thereby makes ......