Nickerson v. Sheldon

• Decision Date: 31 January 1864
• Citation: 1864 WL 2937,85 Am.Dec. 280,33 Ill. 372
• Parties: CHARLES O. NICKERSON et al.v.ELI SHELDON.
• Court: Illinois Supreme Court

33 Ill. 372

1864 WL 2937 (Ill.)

85 Am.Dec. 280

CHARLES O. NICKERSON et al.

v.ELI SHELDON.

Supreme Court of Illinois.

January Term, 1864.

APPEAL from Circuit Court of Fulton county.

Assumpsit by appellee, as the indorsee of an alleged negotiable promissory note, against appellants as the makers thereof.

The case is sufficiently stated by the court.

S. P. Shope, for appellants.

G. Barrere, for appellee.

BREESE, J.

This was an action of assumpsit brought on a promissory note. The declaration counts specially on the note, and contains the common counts for money lent and advanced, had and received, paid, laid out and expended, and for goods and lands sold to the defendants by the plaintiff.

To the declaration a general demurrer was interposed, on which the court gave judgment for the plaintiff and assessed the damages.

We see no error in the proceedings of any character. The common counts being good, whatever may be the character of the special count, the demurrer had to be overruled. The note was evidence under the common counts in the assessment of damages, without proving any consideration. Bilderback v. Burlingame, 27 Ill. 342.

But it is objected that the note sued upon was not negotiable under the statute. This objection is predicated on this clause in the instrument: “We further agree, that if the above note is not paid without suit, to pay ten dollars in addition to the above for attorney's fees.”

It is said this undertaking destroys the instrument as a promissory note, since it requires extrinsic evidence to show that the note was not paid without suit, and the case of Lowe v. Bliss et al., 24 Ill., 168, is referred to in support of the objection. In that case, the note was for a sum of money payable at the Kankakee Bank, Kankakee, Illinois, value received, with current rate of exchange on New York. This stipulation for current rate of exchange on New York made the amount due by the note uncertain, and so deprived it of its negotiability. But the amount due by this note is absolutely certain, and it possesses all the requisites of a negotiable instrument under the statute. Stewart et al. v. Smith, 28 Ill., 397. There is no uncertainty as to the precise sum of money to be paid on the maturity of the note. Houghton et al. v. Francis, 29 Id., 244.

The plaintiff does not declare for the ten dollars, nor was it allowed to him in the assessment of damages. He recovered only the principal and interest due upon the note.

There being no...