Lowe v. Huckins

• Decision Date: 06 June 1934
• Docket Number: No. 22138.,22138.
• Citation: 190 N.E. 683,356 Ill. 360
• Parties: LOWE v. HUCKINS et al.
• Court: Illinois Supreme Court

356 Ill. 360

190 N.E. 683

LOWE

v.HUCKINS et al.

No. 22138.

Supreme Court of Illinois.

April 21, 1934.

Rehearing Denied June 6, 1934.

Error to Appellate Court, Second District, on Appeal from Circuit Court, Kankakee County; A. W. De Selm, Judge.

Assumpsit by Loyd Lowe against W. W. Huckins and others. Judgment for plaintiff was affirmed, and defendants bring certiorari.

Affirmed.

HERRICK and SHAW, JJ., dissenting.

Miller & Shapiro, Eva L. Minor, and W. R. Hunter, all of Kankakee, for plaintiffs in error.

Walter C. Schneider, of Kankakee, for defendant in error.

ORR, Chief Justice.

Loyd W. Lowe secured a judgment on the verdict of a jury in the circuit court of Kankakee county against W. W. Huckins, W. R. Hunter, Sam Battaglia, and Charles Pratt, defendants, for $23,319.98. A motion for a new trial was overruled, and defendants appealed to the Appellate Court for the Second District. That court affirmed the judgment, and a writ of certiorari brings the case here.

In the spring of 1929 it was necessary to reorganize the Legris Trust & Savings Bank of Kankakee. A new bank, the American Trust & Savings Bank, was organized. Lowe purchased 400 shares of stock in the new bank, while defendants took the following number of shares: Hunter 50, Huckins 10, Battaglia 47, and Pratt 53. All of the parties to this action were directors of the new bank, and Hunter was also president pro tem. The new bank encountered difficulties, and a crisis in its affairs was reached in December, 1929. On December 11, the state auditor issued the ultimatum that $50,000 in cash must be raised at once or the bank would be closed. Various expedients were tried to raise the money. One of these was to have F. E. Legris, Sr., sell 200 of over 400 shares he owned of the bank stock. He was a director in the new bank and had filled a similar position in the old bank. The new bank held a note for $50,000 which had been executed by Legris, Sr., and some other directors of the old bank. To purchase the 200 shares, $21,000 was needed. This money was obtained on December 11 from another bank in Kankakee through a loan evidenced by a thirty-day note signed by Lowe and the four defendants. When the note became due, it was discharged by the parties giving a new note for the principal sum, plus accumulated interest of $105. When this renewal note became due, pressure was brought on Lowe to pay it. This he did, and the note was assigned to him by the bank. The proceeds from the sale of the Legris, Sr., stock were applied by the bank as credit on the $50,000 note of the old bank directors. Legris, Sr., did not receive a cent of the money for the stock he delivered to defendant Pratt. The American Trust & Savings Bank closed its doors December 27, 1929.

The gist of Lowe's declaration in assumpsit is that defendants requested him to sign the note as an accommodation comaker, in order that defendants might avail themselves of his credit. In reply, defendants contend that the note was Lowe's note, and that they signed it as sureties and not otherwise. They deny that Lowe was ever requested to sign the note by them, and insist that the indebtedness was his, alone.

It will be noted that this is not an action to compel contribution. The errors briefed and argued have to do with the allegedly erroneous admission of certain evidence and the error committed in giving certain instructions.

The determination of issues of fact by the Appellate Court in all actions at law is binding upon this court on certiorari, appeal, and writ of error. Roe v. Roe, 315 Ill. 120, 145 N. E. 804;Brown v. Illinois Terminal Co., 319 Ill. 326, 150 N. E. 242. The judgment of the Appellate Court affirming the judgment of the trial court conclusively settles the facts unless there is a total lack of evidence in the record upon which to base the judgment. Liska v. Chicago Railways Co., 318 Ill. 570, 149 N. E. 469;Rigdon v. More, 226 Ill. 382, 80 N. E. 901. Under such circumstances, this court has repeatedly held that it will only consider the evidence in determining whether, as a matter of law, evidence is present in the record tending to support the judgment of the Appellate Court.

In considering the first alleged error in the admission of evidence, defendants charge that Lowe set up in his declaration that he signed the note at the request of all the defendants. They claim that the proof shows that only defendant Huckins asked Lowe to sign. This proof, they insist, does not aid Lowe, for in order to bind the other defendants such request must rest upon a joint interest between them which has been duly proved. Lowe replies that such join interest has been proved, not by showing that each defendant made the request, but by proof of circumstances and corroborative facts. The litigants in their discussion of the evidence have engaged in lengthy disputes, each picking out particular portions of the testimony to bolster their respective arguments. To state these...