Phy v. Clark
| Citation | 35 Ill. 377,1864 WL 3062 |
| Parties | ADAM PHYv.DEMARCUS CLARK and BOWEN BROTHERS. |
| Decision Date | 30 April 1864 |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from Circuit Court of Cook County.
Bill in equity filed by appellant against appellees to enjoin the collection of a judgment of $413.17, entered by Bowen Brothers against appellant upon a promissory note and warrant of attorney, under the execution issued upon which defendant Clark, as sheriff, had levied upon property belonging to complainant for the purpose of collecting said judgment.
The bill sets up the entry of such judgment without notice to complainant; the keeping of an open account between said Bowen Brothers and complainant for several years prior to his giving said note; the execution by complainant, while casually in Chicago, in November, 1860, under threat of immediate suit, unless so executed, of said note to Bowen Brothers, which was alleged to have been done without examination of the items or the amount of the note, and in reliance upon their false and fraudulent representations that it correctly stated the balance due them, and at a time when by reason of his absence from his place of business in Montgomery, Kane county, in this state, he was unable to verify its accuracy. The bill then sets up certain errors in the account for the amount of which said note was given, but which are not necessary to be here stated; and also alleges the failure of Bowen Brothers to indorse on said note the full proceeds of certain corn consigned by complainant to them for that purpose. It appeared from the evidence that the difference between the actual proceeds of this corn, which was sold in New York, and what it would have amounted to, if sold in Chicago, was $9.21 in favor of the latter place. The remaining facts are sufficiently stated by the court, and the court below dismissed complainant's bill.
The assignments of error are that the court erred (1) in allowing Winslow's deposition to be read; (2) in decreeing a dissolution of the preliminary injunction and the dismissal of the bill.
C. J. Metzner for appellant.F. H. Kales for appellees.
The note upon which judgment was entered is evidence of an account stated between the parties, and it is incumbent upon the appellant to show what the items of the account were, and that some one or more of them were erroneous. The presumption is that the note was given for the correct amount, and the evidence before us is not sufficient to rebut...
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