Mason v. Burton

• Decision Date: 30 September 1870
• Citation: 54 Ill. 349,1870 WL 6338
• Parties: PARKER R. MASONv.BENJAMIN BURTON.
• Court: Illinois Supreme Court

54 Ill. 349

1870 WL 6338 (Ill.)

PARKER R. MASON

v.BENJAMIN BURTON.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Judge, presiding.

The opinion states the case.

Mr. EDWABD ROBY, for the appellant.

Our statute fixing the liability of the assignor of a promissory note, in case the maker has “left the State when such assigned note became due,” does not apply in a case where the maker resided in another State at the time of the execution of the note, and continued so to reside after its assignment and maturity, although the assignment was made in this State.

Our statute was derived from the States of Virginia, Kentucky and Indiana, and in adopting the statute of another State we adopt the construction put upon it in that State. So in Kentucky it has been held that a person receiving the assignment of a note, knowing that the maker resides out of the State, must be understood as undertaking to pursue him by suit in the country in which he lives. Brinker v. Perry, 5 Litt. Ky. 194. This authority is directly in point, for the party was not excused in any case, by the statute; nor is he here, unless the maker has left, which, ex vi termini, purports that he has been in the State, else he could not leave.

In Virginia, from whence the Kentucky law sprang, the assignee, having used due diligence to recover the money of the maker, without success, has an implied right to recover against his assignor; and this right was not given by statute, but existed at common law. Mackie v. Davis, 2 Wash. 219; Barksdale v. Tenwick, 4 Call, 492; Mandeville v. Riddle, 1 Cranch, 297; Yeaton v. The Bank, 4 ib. 49.

In Kentucky, as in Virginia, (in Mackie v. Davis,) it was decided that the principle upon which the liability of an assignor rests, is a failure of consideration. Wood v. Berthoud, 4 J. J. Marsh. 304.

And in Indiana, that “the endorser of a note, under our statute, warrants two things: first, that the note is valid, and the maker liable to pay it; second, that the maker of the note is solvent, and able to pay it.” Howell v. Wilson, 2 Blackf. 418. From these decisions we find the intent of the statute.

It may be deduced from them that where an endorsee takes an assignment of a note with the knowledge that the maker resides in another State, he takes it subject to the burden of seeking his remedy where the maker resides, and our statute does not relieve him of that burden.

In that regard, the assignor warrants, only, that if the maker was in the State at the time the note was made and assigned, he shall not have left the State when it shall be necessary to sue him.

Upon another point: where a promissory note is endorsed in blank, it is competent for the assignor to show, by parol, that it was the agreement he was not to be liable as endorser.

If the contract was written out in form, certainly it ought not to be varied by parol; but, while it rests in parol, and it must be shown where it was done, in order to know what the law permits to be implied in that particular place, while it is held that the endorsee may write the agreement over the signature by virtue of parol authority, given either in words or mere actions, at the time of the signature--it is certainly competent to prove that no such authority was given, and no such artificial contract was entered into.

This is not varying the terms of a written agreement, but is only proving that no agreement was made, and that it was agreed that none should be written.

This matter of endorsement has been helped out in all sorts of forms by parol, and it rests not in the writing, at all, but in the evidence of intent. Pike v. Street, Moody & M. 226, Ld. Tenterden; Wright v. Latham, 3 Murph. 298 N.C.; Johnson v. Martinus, 4 Halst. 144; McDonough v. Goule, 8 La. (old style) marg. p. 472; vol. 6 (new style) p. 663.

Mr. JOHN P. WILSON, for the appellee.

The maker of the notes sued upon being beyond the limits of the State when the note matured, so that he could not be subjected to our jurisdiction, the liability of appellant, as endorser, became fixed. Crouch v. Hall, 15 Ill. 264; Schuttler v. Piatt, 12 ib. 417; Pierce v. Short, 14 ib. 146; Lee v. Selleck, 33 N. Y. 615; Hilborn v. Artus, 3 Scam. 344; Depuy v. Schuler, 45 Ill. 306; Olcott v. Tioga R. R. Co. 20 N. Y. 210; Ruggles v. Keeler, 3 Johns. 262; Dwight v. Clark, 7 Mass. 515; Bulger v. Roche, 11 Pick. 39; Lafonde v. Ruddock, 24 Eng. Law & Eq. 239; Strithorst v. Græme, 3 Wils. 145; Benjamin v. De Groot, 1 Denio, 151; Davis v. Garr, 2 Seld. 124; Douglass v. Forrest, 4 Bing. 686; Spragins v. Houghton, 2 Scam. 405.

The evidence offered to vary the legal effect of the assignment in blank, was properly rejected. Howe v. Merrill, 5 Cush. 82; Campbell v. Robbins, 29 Ind. 271; Wilson v. Black, 6 Blackf. 510; Odam v. Beard, 1 ib. 191; Blair v. Williams, 7 ib. 132; Bowers v. Headen, 4 Ind. 318; Beagles v. Sefton, 7 Ind. 496; Johnson v. McIntosh, 31 Barb. 270; Barry v. Morse, 3 N. H. 132; Goupy v. Harden, 7 Taunt. 159; Free v. Hawkins, 1 Moore, 535; Bank of U. S. v. Dana, 7 Pet. 58; O'Hara v. Hall, 4 Dallas, 340; The Mont. City Bk. v. Albany City Bk. 8 Barb. 396; Bank of Albion v. Smith, 27 Barb. 491; Thompson v. Ketcham, 8 Johns. 190; Warren v. Wheeler, 8 Met. 99; Atwood v. Cobb, 16 Pick. 231; La Forge v. Riskert, 5 Wend. 187.

Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action brought by Burton as endorsee of two promissory notes, against Mason as endorser. The notes were given by one Hodson, and were payable to the order of Mason, at Chicago, Illinois. It was proven on the trial that the endorsement was made in Chicago, and that when the notes matured Hodson was a resident of the State of Wisconsin. It was then admitted that the notes were made in Wisconsin, and that the maker lived there when they were made, and has lived there ever since.

The counsel for appellant contends that the statute, which makes the endorser liable when the maker has left the State at the maturity of the note, can not apply here, because the maker, not having lived in the State at all, can not be said to have left it. We should not be inclined to give the statute a construction based so completely upon its letter instead of its spirit, even if the question were a new one in this court. But it is not new. In Schuttler v. Piatt, 12 Ill. 418, the maker of the note, as in this case, resided in Wisconsin, and the court held, if he was beyond the limits of the State at the maturity of the note so that he could not be subjected to our jurisdiction, the liability of the assignor was fixed, the assignee not being obliged to pursue his debtor into a foreign jurisdiction. The court further said, the circumstance that the maker resided in another State, and that this was known to the plaintiff when he received the notes, did not vary the liability.

In that case, it is true, the note was made in Chicago while the maker was casually there, though living in Wisconsin, and it may be said he did literally leave the State. But the court does not base its decision upon any verbal niceties, but upon the broad ground that the maker was absent from the State when the note matured, and the assignee was not bound to pursue him into a foreign jurisdiction. It is wholly immaterial whether the liability of the endorser in such a case be referred to that clause of the statute which charges him when suit against the...