Miller v. William Montgomery.
| Decision Date | 30 April 1863 |
| Parties | GEORGE A. MILLER et al.v.WILLIAM MONTGOMERY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of McHenry county; the Hon. ISAAC G. WILSON, Judge, presiding.
This was an action of assumpsit instituted in the Circuit Court, by Montgomery, against the appellants, upon a promissory note executed by Miller and others, as principals, and by Donnelly, as security.
Upon the trial of the issues, it appeared that several payments were indorsed; besides which, Miller had paid to Montgomery a certain sum of money, which he directed also to be applied as a credit on that note. Montgomery gave a receipt for the sum so paid, promising to enter the credit as directed, but neglected to do so.
Subsequently, under an agreement between Miller and Montgomery, the amount for which the receipt was given, and directed to be applied as a payment on the note, was applied upon another debt which Miller, individually, owed Montgomery.
The amounts indorsed as payments upon the note, together with the amount for which the receipt was given, would have been a full satisfaction of the debt sued for.
Montgomery knew the fact that Donnelly was only a security upon the note.
The court was asked to instruct the jury on the part of the defendants as follows:
1. If the jury believe, from the evidence, that the receipt offered in evidence was by the plaintiff and defendant, Miller, to apply on the note in question, then that it was so applied, and that such receipt satisfied in full the balance remaining due on the note, then the plaintiff cannot recover even though the jury believe that the defendant, Miller, afterwards agreed that such receipt, or any part of it, should apply on any other deal existing between Montgomery and Miller.
2. If the jury believe, from the evidence, that the note was satisfied in full by payments and receipt, then they are instructed that any afterward arrangement made by Miller, by which such payments were to be differently applied, and the indebtedness of the note revived, is not binding on the defendant, Donnelly, if the jury further believe that the plaintiff knew that Donnelly signed the note as security, unless the jury believe that Miller had authority for the other defendants to so change the application of the payments if any were made.
The Circuit Court refused each of these instructions, and the defendants excepted.
The jury found a verdict for the plaintiff; a motion for...
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