Lowery v. Gear

• Citation: 32 Ill. 383,1863 WL 3195
• Parties: JOHN LOWERYv.HEZEKIAH H. GEAR.
• Decision Date: 30 April 1863
• Court: Supreme Court of Illinois

32 Ill. 383

1863 WL 3195 (Ill.)

JOHN LOWERY

v.HEZEKIAH H. GEAR.

Supreme Court of Illinois.

April Term, 1863.

APPEAL from Circuit Court of Jo Daviess County.

This action was brought September 12, 1860, by appellant, the assignee, after maturity of a certain promissory note executed September 16, 1842, and payable eighteen months after date to the order of W. J. Brown, against appellee, the maker thereof.

The pleadings and evidence are sufficiently stated by the court.

The following instructions were given for the plaintiff:

“(1) The note sued on in this action imports consideration, and if not barred by the Statute of Limitations, is sufficient to authorize a recovery by the plaintiff, to the full amount of principal and interest unpaid thereon, unless a want or failure of consideration is proved by the defendant.

(2) An express promise to pay said note, or a payment thereon made, by said defendant, within sixteen years before the commencement of this suit, is sufficient in law to take the case out of the Statute of Limitations, if proved by the plaintiff.

(3) If the jury find, from the proof, that the defendant paid on Brown's order, while Brown was the holder of the note in controversy, at one time thirty dollars, and at another time fifteen dollars; and that, at the time of said payments, Gear did not owe Brown anything except said note; the law presumes that the sums so paid were payments on said note, until the contrary is shown by proof.”

The court instructed the jury on behalf of defendant, as follows: “The Statute of Limitations, pleaded in this case, is a bar to a recovery by the plaintiff, unless the jury believe, from the evidence, that a payment, or promise to pay, has been made on said note within sixteen years before the commencement of this suit.”

The verdict was for the defendant.

E. S. Smith, and E. A. Storrs, for appellant.

M. Y. Johnson, for appellee.

CATON, C. J.

We have examined the questions of law raised in this case, and find no error in the decisions of the court upon the admission of the testimony, or in the instructions, of which the plaintiff can complain.

The real question in the case is, as to the sufficiency of the evidence to sustain the verdict. Two defenses were relied upon. One, the Statute of Limitations, and the other a want or failure of consideration. If the evidence is sufficient to sustain the verdict upon either of these defenses it must be allowed to stand. We shall confine ourselves to the consideration of the first defense. To the plea of the Statute of Limitations the plaintiff replied a new promise. This averment of a new promise, the jury have said by their verdict, was not sustained by the proof. The plaintiff relied upon an implied new promise arising upon the fact of a payment made by the defendant upon the note within sixteen years. If the proof shows that, in fact, such a payment was made upon the note, then the law implies therefrom a new promise to pay the note. Two indorsements of payments appear upon the note, one of thirty dollars, ¹ and one of fifteen dollars.² Both these indorsements were made by Brown, the payee and holder of the note, when the maker was not...