Preston v. Jones
| Decision Date | 31 March 1879 |
| Parties | DAVID PRESTON ET AL.v.J. BLACKBURN JONES. |
| Court | United States Appellate Court of Illinois |
ERROR to the County Court of Cook county; the Hon. MASON B. LOOMIS, Judge, presiding.
Mr. MORTON CULVER, for plaintiffs in error; argued that if a bank to whom paper is sent for collection, receives anything else than money, it is no payment; and if it takes anything else it becomes the agent of the payor, and its acts do not bind the sender unless specially notified, and cited German American Bank v. Nat. Bank of Missouri, 11 Chicago Legal News, 97; Nolan v. Jackson, 16 Ill. 272; Vickery v. McClellan, 61 Ill. 311; U. S. Life Ins. Co. v. Advance Co. 80 Ill. 549.
Messrs. STEELE & JONES, for defendants in error; that if a guarantor signs after delivery of the note to the payee, a new consideration must be shown for the guaranty, cited Parkhurst v. Vail, 73 Ill. 343; Pahlman v. Taylor, 75 Ill. 629; Boynton v. Pierce, 79 Ill. 145; White v. Weaver, 41 Ill. 409.
There was evidence to support the verdict, and it should not be set aside: Varner v. Varner, 69 Ill. 401; T. W. & W. R. R. Co. v. Moore, 77 Ill. 217; Clifford v. Lubring, 69 Ill. 410; Chapman v. Burt, 77 Ill. 337; C. & N. W. R. R. Co. v. Ryan, 70 Ill. 211; McClelland v. Mitchell, 82 Ill. 35.
Plaintiffs in error, on affidavit being made for a continuance, admitted that the witnesses, if present, would swear to the facts stated, and such facts were read to the jury. This was not the reading of ex parte affidavits, but a statement of admitted facts: Rev. Stat. 740, §§ 44, 45; Utley v. Burns, 70 Ill. 162; C. & N. W. R. R. Co. v. Clark, 70 Ill. 276.
Plaintiffs in error, who were bankers in the city of Chicago, sued defendant in error as guarantor of a promissory note made to them by W. P. Jones, of March 1, 1876, at five months, for four hundred dollars. The defenses set up were, first, that he endorsed the note after it had been delivered to plaintiffs, and without consideration; and second, that he delivered to them and they received in full satisfaction of his liability, an order of Bartlett Waldron upon Hagar Waldron, adm'r, &c., for four hundred and forty-five dollars.
Upon the first issue it appeared that the note was for a balance due on a previous one, for which it was to be taken as an extension only when and upon condition that defendant should guarantee it, and that the old one was not surrendered or canceled nor the new one absolutely accepted until the latter was so guaranteed. Whether defendant at the time of his endorsement knew of this understanding between the plaintiffs and the maker was not distinctly shown, but this branch of the defense seems not to have been much relied on. No instruction was asked of the county court, and no question is presented here in reference to it.
Upon the second issue the evidence showed that after the note matured, plaintiffs sent it for collection to Emil Karst, cashier of the Continental Bank of St. Louis, Missouri, where defendant then resided; that Karst notified him in the usual form; that defendant called and offered to turn over in satisfaction of the claim against him the order above referred to, saying it was good, and with proper care could be collected; that Karst disclaimed authority to receive it as proposed, and some evidence was introduced tending to show that he agreed to send it to plaintiffs, and if they should decline so to receive it he would return it to the defendant within a week. He did immediately send it to them, but with what proposition or statement, if any, was not proved. It appears, however, that they held it, made some ineffectual effort to collect it, and produced it on the trial. Plaintiffs offered in rebuttal certain letters,...
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