Miller v. Lumsden

Citation1854 WL 4809,6 Peck 161,16 Ill. 161
PartiesGEORGE N. MILLERv.GEORGE L. LUMSDEN et al.
Decision Date31 December 1854
CourtSupreme Court of Illinois

16 Ill. 161
1854 WL 4809 (Ill.)
6 Peck (IL) 161

GEORGE N. MILLER
v.
GEORGE L. LUMSDEN et al.

Supreme Court of Illinois.

December Term, 1854.


MILLER brought his action in assumpsit against Lumsden and Co., and Lewis and Adams, upon a note. Plea, the general issue.

[16 Ill. 162]

On the trial Miller produced his note in evidence, when it appeared that Lumsden and Co. had given George A. Lamb and Co., of which firm Miller was a partner, a draft, on some parties in St. Louis for the amount due upon the note, which was taken with an understanding between John M. Lamb, the partner of Lumsden, and George A. Lamb, the partner of Miller, that if the draft was paid, it should be taken as payment of said note; if not, it was to be returned and be no payment. Miller was informed of the transaction by his partner, George A. Lamb, and acquiesced in it, but on the suggestion of Lamb, said he would hold on to the note until the draft was paid. George A. Lamb and Co., of which firm Miller was a partner, indorsed the draft to one Laton Moore, to which George A. Lamb and Co. were at the time indebted. Moore assigned the draft to a party in St. Louis, who held it when it was protested for non-payment, that it was unpaid and in the control of Moore. It did not appear that this draft had been returned to Lumsden and Co. since. Lewis and Adams were security on the note given by Lumsden and Co. to Miller, and for which George A. Lamb and Co. took the draft of Lumsden and Co., on St. Louis.

Verdict and judgment for the defendants, on trial before DAVIS, Judge, and a jury, at March term, 1854, of the Sangamon Circuit Court.

Miller, the plaintiff below, brings the cause to this court.

JAMES C. CONKLING, for Plaintiff in Error.

S. T. LOGAN, for Defendant in Error.

TREAT, C. J.

It is a fair conclusion from the evidence, that the plaintiff authorized or ratified the arrangement made between his partner and Lumsden and Co., in relation to the note. A witness understood him to say, that the note was the property of the partnership. Although the partner denies the truth of this declaration, yet he admits that the arrangement was made for the express purpose of getting the proceeds of the note into the partnership. He obtained a bill of exchange from Lumsden and Co., payable to the firm, and then indorsed it in the name of the firm to one of the partnership creditors. The payment of the bill was to extinguish the note, as well as a like amount of the indebtedness of the firm. The plaintiff was...

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18 cases
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  • Hanson v. Donkersley
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    ... ... Mobile, etc. Ins. Co. 27 Ala. 258; Tobey v. Barber ... 5 Johns. 68; Holmes v. D'Camp 1 Johns. 34; Burdick v ... Green 15 Johns. 247; Miller v. Lumsden 16 Ill. 161; Iglehart ... v. Jernegan id. 513. If he reduces the note to a judgment ... upon which execution has issued he cannot return ... ...
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