Quinn v. Hanley

• Decision Date: 31 October 1879
• Citation: 5 Bradw. 51,5 Ill.App. 51
• Parties: JOSEPH B. QUINNv.FRANCIS A. HANLEY ET AL.
• Court: United States Appellate Court of Illinois

5 Ill.App. 51

5 Bradw. 51

JOSEPH B. QUINN

v.FRANCIS A. HANLEY ET AL.

Appellate Court of Illinois, First District.

October Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. HENRY BOOTH, Judge, presiding. Opinion filed January 7, 1880.

Messrs. WASHBURN & ROBBINS, for appellant; that the railroad receipts showing flour shipped by appellees to appellant were not admissible in evidence against appellant as admissions of his agent, cited 1 Greenleaf's Ev. § 115; 1 Smith's Lead. Cas. *399; Dow v. Sawyer, 29 Me. 118; Batre v. Simpson, 4 Ala. 312; Livingston v. Tyler, 14 Conn. 499; Brewster v. Doane, 2 Hill, 537; Wilber v. Selden, 6 Cow. 162; Moon v. Andrews, 5 Porter, 107.

The receipts of third persons are not admissible in evidence, the party making them not being produced: Longenecker v. Hyde, 6 Binn. 1; Spargo v. Brown, 9 B. & C. 935; Cuthbert v. Gilbert, 4 S. & R. 550; Warner v. Price, 3 Wend. 398; Lonergan v. Stewart, 55 Ill. 44; Grove v. Miles, 58 Ill. 338.

The plaintiff cannot make out a case by the mere production of the bill of exchange: Dempster v. West, 69 Ill. 613; Welch v. Lindo, 7 Cranch, 159.

Plaintiff must prove return of the bill and payment by him: Chitty on Bills, *647; Hoffman v. Bignall, 7 Reporter, 666; 2 Greenleaf's Ev. § 169.

To recover upon the original consideration plaintiff should first surrender the bill for cancellation: Miller v. Lumsden, 16 Ill. 161; Rayburn v. Day, 27 Ill. 47; Hayden v. Latham, 30 Ill. 188.

Messrs. SHUFELDT & WESTOVER, for appellees; that the presumption is that the bill was the property of appellees, cited Palmer v. Gardiner, 77 Ill. 143; Jewett v. Cook, 81 Ill. 260.

MCALLISTER, J.

This was an action brought by Hanley & Metcalf on a bill of exchange drawn by them July 20, 1877, at Palmyra, Missouri, and directed to J. B. Quinn & Co., Chicago, Illinois, whereby the former requested the latter, three days after sight, to pay John W. Russell or order eight hundred and seventy-five dollars, value received. The declaration follows the precedent in 2 Chitty's Pl. 148; and after setting out the bill as above, avers that it was delivered to Russell; that it was accepted by Quinn & Co., the defendants; and when due was presented to them, payment thereof demanded and refused; that thereupon it was returned to the drawers, the plaintiffs, and they were obliged to and did pay Russell the amount thereof. On the trial, under the general issue, the plaintiffs simply introduced the bill of exchange, with computation of interest in evidence, and rested. The bill was not endorsed by Russell, and there was no proof of presentment or demand of payment made on the acceptors, or that the drawers had it returned to them, or ever paid anything on account of it. Verdict and judgment having gone for plaintiffs below, the question on this appeal by the defendants is, whether the production of the bill of exchange in evidence without any endorsement by the payee, is sufficient of itself alone to entitle the drawers of such bill to recover upon the same against the acceptors.

In Louvier v. Lanbray, 10 Mod. 37, the question was whether the drawer of a bill of exchange which had been accepted and protested for non-payment, and endorsed by the payee to the drawer, could as endorsee maintain an action against the acceptor; and it appearing that the acceptance was not upon the honor of the drawer, the court held the action well brought. In Simmonds v. Parminter & Barrow, 1 Wilson, 185, the action was by the drawer of a bill of exchange against the acceptors, where the bill was also payable to a third person, and there was no endorsement by the payee. But in that case, as in the one at bar, the declaration averred the drawing the bill by plaintiffs, the delivery of it to the payee, and acceptance by the drawees; and that when due it was presented to the latter, payment demanded and refused; that thereupon it was returned by the payee to the plaintiffs, the drawers, and that they were obliged to and did pay the amount thereof to the payee with interest, cost and damages. The court held the plaintiffs under these circumstances entitled to recover, and that judgment was affirmed afterwards in the House of Lords. This case seems to...