McMicken v. Safford

• Decision Date: 19 June 1902
• Citation: 197 Ill. 540,64 N.E. 540
• Parties: McMICKEN et al. v. SAFFORD.
• Court: Illinois Supreme Court

197 Ill. 540

64 N.E. 540

McMICKEN et al.

v.SAFFORD.

Supreme Court of Illinois.

June 19, 1902.

Error to appellate court, Second district.

Assumpsit by Helen M. Safford against William H. McMicken and another. A judgment for plaintiff was affirmed by the appellate court (100 Ill. App. 102), and defendants bring error. Affirmed.

N. J. Aldrich and Theodore Worcester, for plaintiffs in error.

Cheney & Evans, for defendant in error.

RICKS, J.

This was a suit in assumpsit, brought to the May term, 1900, of the Kane circuit court, by Helen M. Safford, against William H. McMicken and Thomas D. McMicken, upon a promissory note. The note was for the principal sum of $1,500, bore date March 13, 1892, matured one year thereafter, and was payable to the order of Helen M. Safford. It was originally signed by William McMicken and his wife; but after it became due, and after the death of the wife, their sons, William H. McMicken and Thomas D. McMicken, signed it, subscribing their names under those which the note then bore. The two original signers having died, this suit was brought to charge William H. and Thomas D. McMicken as guarantors. The narr. contained the common counts, and also a special count charging plaintiffs in error as guarantors. After averring the making of the note by William McMicken and his wife, R. McMicken, on March 3, 1892, it further averred that after the death of the wife, R. McMicken, and on the 17th day of January, 1896, the note being then due and unpaid, and the plaintiff pressing said William McMicken for payment and being about to bring suit for the collection, in consideration of the promise of the plaintiff to William McMicken, one of the makers of the note, ‘to forbear bringing suit thereon for a reasonable time thereafter, to wit, for the space of one year, said defendants, T. D. and W. H. McMicken, did then and there enter into a joint and several undertaking and writing to pay said note according to the terms thereof, and did sign said note and deliver the same to plaintiff, and thereby promised,’ etc. To the declaration the defendants severally pleaded the general issue, and each also filed a special plea alleging a want of consideration for the signing of said note, in which they stated that at the time they signed said note the same was long past due and there was no consideration for the same, and that it was a mere naked promise from the defendants, without any consideration therefor. Upon these pleas issues were joined. A jury was waived, and there was a finding and judgment in favor of the plaintiff for the principal and interest of the note amounting to $2,266, which was affirmed by the appellate court. This writ of error was sued out by William H. McMicken, but Thomas D. McMicken assigns cross errors identical with the errors assigned by plaintiff in error.

It appears from the proof that William McMicken and his son Thomas D. were merchants in the city of Aurora, and on January 27, 1896, were in failing circumstances. On that day R. S. Safford, the husband and agent of Helen M. Safford, having heard that judgment had been entered against the firm of William McMicken & Son, called upon William McMicken at his store and told him that he (Safford) wanted something done in regard to that note. McMicken said he had plenty of means to pay it, if he only had time. Safford said he would give all the time necessary, or any reasonable time, provided he was satisfied with the security, and asked the elder McMicken if his two sons would sign the note. Thereupon William McMicken had some conversation apart with his sons William H. and Thomas D. McMicken, and they signed the original note under the signatures of the father and mother. William McMicken then delivered the note to Safford, who left the store. No further demand for the payment of the note was made for between three and four years, or until about sixty days before this suit was brought. No indorsement extending the note was made upon it, nor was there any fixed time agreed upon between William McMicken, the father, and Safford, to which it should be extended. The questions open for the consideration of this court arise upon the giving and refusal of certain holdings presented by the respective parties upon the which plaintiffs in error chiefly rely upon.

It is first complained that the court granted defendant in error's first request, which is as follows: ‘It is sufficient in this case for the plaintiff to prove a promise to forbear bringing suit upon the note in question for a reasonable time, in consideration of the undertaking of the elder McMicken to secure the signature on the said note of the two defendants, and the actual return of the note to the plaintiff bearing the signatures of the defendants, and that she thereafterwards actually forbore to bring suit for such reasonable time. This makes out a prima facie case for the plaintiff, and sufficiently supports the declaration to maintain a judgment, unless overcome by the testimony on the part of the defendants.’ It is complained of this holding that it omits the element of knowledge of the consideration on the part of the plaintiffs in error, which they insist was necessary to a valid contract of guaranty after delivery. Defendant in error, to meet this contention, first urges that there was no defect in the holding, as contended for by plaintiffs in error; and, next, that, if there was, it was cured by the holding of the second proposition on behalf of defendants, which was as follows: ‘That, in order to hold defendants in this suit under the pleadings, it is incumbent upon the plaintiff to show by a preponderance of the evidence that the consideration relied upon for their contract was made known to or understood by them at the time of the said contract.’ Under the state of the pleadings in this case we are disposed to hold that the first proposition given on the request of the defendant in error was correct. The declaration contained the common counts, and also a special count; and the note relied upon was offered in evidence, and the signatures of plaintiffs in error thereto proved. As we understand the practice that has obtained in suits upon such instruments, that made a prima facie case for the defendant in error under the common counts; and, if plaintiffs in error wished to rely upon their plea of want of consideration, they had a right to establish the facts alleged in their plea by evidence to be offered by them. Stacker v. Hewitt, 1 Scam. 207;Hoyt v. Jaffray, 29 Ill. 104;Mitchell v. Deeds, 49 Ill. 416, 95 Am. Dec. 621. Such is, substantially, the effect of the holding complained of, and we are unable to say that it was not consonant with the general practice and law governing such suits. Plaintiffs in error, in their argument, seem to ignore the fact that the common counts were filed, and to discuss the case upon the theory that plaintiff below was bound to establish the averments of the special count as a part of her case in chief. Such would have been the requirement in the absence of the common counts. We think that the giving of the second holding asked by plaintiffs in error did not have a tendency to explain or in any practical degree affect the holding complained of, but did state more fully the law of the case according to the contention of the plaintiffs in error.

The next ground of error insisted upon is the refusal of the court to hold the refused proposition No. 1 offered by plaintiffs in error, which was: ...