Leach v. Nichols
| Decision Date | 30 September 1870 |
| Citation | 1870 WL 6414,55 Ill. 273 |
| Parties | ALONZO LEACHv.FRANK A. NICHOLS et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Kankakee county; the Hon. CHARLES H. WOOD, Judge, presiding.
The opinion states the case.
Mr. H. LORING, for the plaintiff in error.
Mr. WILLIAM POTTER, for the defendants in error.
This was an action of assumpsit, brought by plaintiff in error against defendants in error, upon a promissory note alleged to have been made by the latter, bearing date March 23, 1868, whereby the defendants, for value received, promised to pay to H. Burbank, one year after date, $180, at ten per cent interest, which was endorsed by Burbank to one Munson, and by him to the plaintiff. The general issue and three special pleas were filed. The special pleas set up the defense, that the note was obtained by said Burbank by fraud and circumvention, upon which issue was taken, the cause tried by a jury, who found the issues for the defendants, judgment in accordance with the verdict, and the case brought here by writ of error. The errors relied upon are, that the court erred in permitting the defendants to be witnesses in their own behalf, on the ground that Burbank, the payee, had died, and also in instructing the jury improperly on behalf of the defendants.
The objection that the defendants were not competent witnesses, is not well taken. The plaintiff did not sue as executor, administrator, heir, legatee or devisee of Burbank, and the case is not within the exception to the first section of the statute of 1867, removing the objection of incompetency of a party to a suit. Besides, the record does not show that any exception was taken to the ruling of the court upon this question.
The instruction given on behalf of defendants, as to plaintiff's recourse upon his assignor, Munson, if the note should be found invalid, though it may have embodied a correct proposition of law, should not have been given, because no such question was involved in this suit. The evident purpose of it was, to relieve the minds of the jury of any reluctance they might feel in finding against the plaintiff, on account of his being a bona fide holder of the note.
But we are not satisfied with the other instruction given to the jury on behalf of defendants. It is as follows:
“If you believe from the evidence, that the consideration of the note in question was a transfer from H. Burbank, the payee of said note, to the defendants of a patent right hay loading device, and that the said H. Burbank agreed with the defendants that the note should contain a provision and condition that it should not be paid till the defendants had sold sufficient number of said hay loading devices to realize an amount equal to the face of said note, and if you further believe, from the evidence, that the said Burbank thus represented and misread the note in question, and as containing the said condition to-wit: That the said note should not be payable till the defendants had realized an amount equal to the face of the note, by the sale of Eliot's Improved Hay Loading Device, and that the defendants believed and supposed that the said note contained said condition, whereas, in fact, it did not contain such condition, then, under the pleading in this case, such misrepresentation of said Burbank, practiced upon defendants, amounted to such fraud and circumvention in obtaining the execution of the same as, under our statute, makes the note in question void in the hands of the plaintiff, as an assignee of said note, notwithstanding he may have paid its full face in money before the same became due, and without notice of such fraud.”
These defendants were, neither of them, as appears from the evidence, unlettered men, but, on the contrary, could, both of them, read and write with facility. Although this fact would not be conclusive against the defense set up, yet it presents the question, whether they should not have shown, and the court have submitted it to the jury to find, that they were not guilty of any negligence in signing the note, by which innocent third parties were liable to be injured. It has been held by this court, that if a man carelessly let his note go into circulation, written partly in ink and partly in pencil, thus affording both a temptation and an opportunity to fraudulently alter it, and it is so altered, he shall not be permitted to set up such alteration against an innocent holder. Harvey v. Smith, 55 Ill. 224.
So here, if these defendants could, by the exercise of due care, have prevented this absolute note from going into circulation, instead of one with a condition which would have been notice to all the world, and they failed to exercise that diligence, and an innocent third party was thus induced to purchase it in the usual course of business, why should they not stand the consequences,...
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...30 Tex. 529; McCrevey v. Remson, 19 Ala. 430. As to fraud: Woods v. Hynes, 1 Scam. 105, 587; Taylor v. Atchison, 54 Ill. 196; Leach v. Nichols, 55 Ill. 273; Glazier v. Streamer, 57 Ill. 91; Murry v. Beckwith, 48 Ill. 391; Shipley v. Carroll, 45 Ill. 285. A note may be made valid by subseque......
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