Merritt v. Dewey

• Decision Date: 20 December 1905
• Citation: 218 Ill. 599,75 N.E. 1066
• Parties: MERRITT v. DEWEY.
• Court: Illinois Supreme Court

218 Ill. 599

75 N.E. 1066

MERRITT

v.DEWEY.

Supreme Court of Illinois.

Dec. 20, 1905.

Appeal from Appellate Court, Second District.

Action by Charles P. Dewey against H. Clay Merritt and another. From a judgment of the Appellate Court (115 Ill. App. 503), affirming a judgment for plaintiff, defendant Merritt appeals. Reversed.N. F. Anderson and Wilson, Moore & Faull, for appellant.

Allen P. Miller and James K. Blish, for appellee.

This is an appeal prosecuted by H. Clay Merritt, the appellant, from a judgment of the Appellate Court for the Second District affirming a judgment of the circuit court of Henry county for $2,111.92 in favor of Charles P. Dewey, the appellee, against the appellant. The action was assumpsit, and the declaration consisted of the common counts and a special count on a promissory note for $1500, dated January 22, 1898, due one year after date, signed by L. Silverman and H. Clay Merritt, payable to themselves, and indorsed and transferred by them, before maturity, to Charles P. Dewey. Both Siverman and Merritt were made defendants. The former permitted a default to be taken against him. The latter filed the general issue, with an affidavit denying the execution of the note. The evidence for the defendant Merritt tended to show that the note had been materilally altered, without his consent, since he signed it; that it had been raised from a note for $100 to a note for $1500, either by changing the word ‘one’ before the word ‘hundred’ to the word ‘fifteen,’ or, if the word ‘one’ was not there, then by writing the word ‘fifteen’ before the word ‘hundred’; and that it had been changed from a noninterest-bearing note to one bearing interest at 7 per cent. per annum from date. Plaintiff's evidence in rebuttal tended to show, if the word ‘fifteen’ was not in the note when signed, that it was written in a blank space left, when the note was signed, before the word ‘hundred,’ and the plaintiff contends that it appears from Merritt's testimony that he knew and understood, when he signed the note, that it was to draw interest at 7 per cent. per annum. The note was sold to the plaintiff, who was a banker, by an attorney who was acting for Silverman, and the evidence shows that when the attorney received the note from Silverman and when the appellee received it from the attorney it was in the same condition as it was at the time it was introduced in evidence on the trial below.

The appellant contended in the circuit court, and argues here, that the note shows on its face that it has been altered in the particulars testified to by the appellant, and that the appearance of the note itself was sufficient to put a reasonably prudent man upon inquiry as to its genuineness. The Appellate Court states in its opinion that the original note was certified to that court by the circuit court for inspection, and that the note does not show on its face any evidence of having been changed since it was signed by Merritt. A special interrogatory was submitted to the jury whether the word ‘one’ was written in the body of the note before the word ‘hundred’ when the note was signed by the appellant, which the jury answered by a special finding in the negative. The original note has not been certified to this court. At the close of all the evidence the appellant requested the circuit court to instruct the jury to find the issues for the defendant Marritt, because the declaration counted on a promise only, while the evidence showed the only ground of recovery to be that of negligence on the part of the appellant in leaving blank spaces in the note at the time of signing it. The peremptory instruction so tendered was refused by the court, and its action in this regard is assigned as error. It is also urged that the court erred in giving appellee's instructions numbered 1, 2, 5, 7, 8, 9, and 10, and in refusing to give appellant's instructions numbered 4, 5, 8, 9, 10, 11, 12, and 13, and in modifying certain other instructions asked by appellant.

SCOTT, J. (after stating the facts).

The instrument sued on was, at the time suit was brought thereon, in the words and figures following: ‘$1,500.00. Kewanee, Ill., January 22, 1898. One year after date we promise to pay to the order of ourselves, fifteen hundred dollars, at my office, Kewancee, Ill., value received, with seven (7) per cent. interest per annum. L. Silverman. H. Clay Merritt’-on the back of which appears the following: ‘L. Silverman. H. Clay Merritt.’ The note was written on a printed blank in which there was no provision for the payment of interest, and Merritt testified that the interest clause, which is in writing and is as follows: ‘with seven (7) per cent. interest per annum-'was not written there when he signed. These words are written on an imaginary line beginning near the left-hand margin of the note and running to the right. Several of the first words are practically on a line with Silverman's signature. The space to the left of that signature, however, was not long enough to contain all the words of the interest clause, and when the line which the words follow reaches the signature of Silverman it curves upward, so as to pass above that signature. Merritt testified further, however, in these words: ‘I imagine now that the contract was that the note was to draw 7 per cent. interest. It might be 6 or 7. I am not positive about it either way.’ Later in his testimony he said that his opinion was that the note was to draw 7 per cent., but that the question never came up; that there was nothing talked about the interest when the note was signed and that he presumed that the interest clause as it now appears in the note was the same as when he signed it, except that when he signed it it did not contain the words, ‘with seven.’ While his testimony is somewhat indefinite, it is yet apparent therefrom that, when he signed, either the interest clause was entirely lacking, or the words ‘with seven’ were lacking. No other witness testified on this subject. When the note was delivered to Silverman's attorney it was in the same condition as when suit was brought thereon. No one was present when the note was signed, except Merritt and Silverman. Merritt testified that the alterations made in the note after it was signed were made without his knowledge or consent. Dewey did not call Silverman as a witness on the trial below nor account for his absence.

With the proof in this condition the court modified the sixth instruction asked by Merritt, and gave it as modified, in the words following: ‘If the jury believe from the evidence that the words ‘with seven (7) per cent. interest per annum’ were written into the note without Merritt's knowledge, authority, or consent that the note was to bear interest at 7 per cent. per annum, after he and Silverman had signed it, then you will find the issues for the defendant, Merritt.' The modification consisted in writing in the italicized words. The plaintiff's fifth instruction stated the same proposition in the words following: ‘Although the jury may believe, from the evidence, that the words ‘with seven per cent. per annum’ were written upon the note after it was signed by...