Kipp v. Mcchesney
| Decision Date | 30 September 1872 |
| Citation | 66 Ill. 460,1872 WL 8606 |
| Parties | HORACE R. KIPP et al.v.JACOB MCCHESNEY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Woodford county; the Hon. S. L. RICHMOND, Judge, presiding.
Mr. M. L. NEWELL, for the plaintiffs in error.
Messrs. BANGS & SHAW, for the defendant in error.
This was an action of assumpsit, to recover the amount of a promissory note dated November 4, 1868, made by H. R. Kipp, as president of the Consolidated Minonk Coal Mining Co., for the sum of $129.50, payable six months after its date, to Henry C. Dent or order, with ten per cent interest, and by him indorsed to John M. Davison, and by the latter to Jacob McChesney, the plaintiff in the court below, who there recovered judgment against the defendants, the makers of the note. The defendants bring the record here by writ of error.
The defendants, who were ten in number, and one of whom was the said John M. Davison, constituted a co-partnership at the time the note was made, under the name of the Consolidated Minonk Coal Mining Co.
The only question raised upon the record is as to the effect of the transaction between Dent, the payee and assignor of the note, and Davison, the assignee, the latter being one of the co-partners who made the note. It is contended, on the part of the plaintiffs in error, that the transaction was a payment of the note by Davison, one of the makers, or if not a payment, that, as Davison, when he acquired title to the note by assignment, could not have maintained a suit at law upon it against the makers, he being one of them, neither could he have transferred a right to sue upon it to his assignee, the plaintiff, and that the assignment of the note to Davison was, by operation of law, an extinguishment of it.
We think the case turns entirely upon whether there was a payment of the note by Davison, or a purchase of it by him. If he paid the note as one of the makers of it, it was an extinguishment of the note, and he could not afterwards put it in circulation. The testimony of both Dent and Davison is unequivocal that it was a purchase of the note by the latter, and not a payment.
Dent testifies that on the 5th of July, 1871, Davison came to him and inquired what interest he, Dent, had in the coal shaft. Dent said he had a note on the company and one-seventh interest in the shaft, and would sell him the note for $164 and give him the interest...
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