Rabberman v. Muehlhausen
Decision Date | 28 February 1879 |
Citation | 3 Bradw. 326,3 Ill.App. 326 |
Parties | FREDERICK RABBERMANv.BERNHARD W. MUEHLHAUSEN. |
Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of St. Clair county; the Hon. AMOS WATTS, Judge, presiding.
Mr. R. A. HALBERT and Mr. C. F. NOETLING, for appellant; upon the question of fraud in procuring the note signed, cited Champion v. Ulmer, 70 Ill. 322; Edleman v. Byers, 75 Ill. 367; Byers v. Daugherty, 40 Ind. 198; Gibbs v. Linabury, 22 Mich. 479; Briggs v. Ewart, 51 Mo. 245; Hubbard v. Rankin, 71 Ill. 129; Detmiller v. Bish, 44 Ind. 70.
If a part of the instrument signed is afterwards torn off or erased, the maker is not bound by the instrument so altered: Wait v. Pomeroy, 20 Mich. 425; Kellogg v. Steiner, 29 Wis. 626; Cochran v. Nebecker, 48 Ind. 459; Bendict v. Cowden, 49 N. Y. 396.
An instrument signed by an illiterate person under misrepresentation, as to its contents; or where the instrument is misread to him, is void: Schuylkill Co. v. Copley, 67 Pa. St. 387; Walker v. Ebert, 29 Wis. 194; Richardson v. Schirtz, 59 Ill. 313; Leach v. Nichols, 57 Ill. 273; Munson v. Nichols, 62 Ill. 111; Latham v. Smith, 45 Ill. 25; Taylor v. Atchison, 54 Ill. 196; Sims v. Bice, 67 Ill. 88; Champion v. Ulmer, 70 Ill. 322; Edleman v. Byers, 75 Ill. 367.
Appellant was only required to use reasonable caution in signing the note; Tayler v. Atchison, 54 Ill. 196; Sims v. Bice, 67 Ill. 88; Gould v. Stevens, 43 Vt. 125; Ayers v. Hutchins, 4 Mass. 370; Russell v. Hadduck, 3 Gilm, 233.
An instruction assuming to be a statement of the case, must state all facts necessary to be proved: St. L. &. S. E. R'y Co. v. Britz, 72 Ill. 256.
Where it is manifest the verdict is wrong, and that improper instructions may have contributed to the result, a new trial should be granted: T. W. & W. R. R. Co. v. Corn, 71 Ill. 493; T. W. & W. R. R. Co. v. Moore, 77 Ill. 217; C. B. & Q. R. R. Co. v. Van Patten, 74 Ill. 91.
No assignment of the note to appllee was proven: Elliott v. Levings, 54 Ill. 213.
A person taking a note without assignment, takes it subject to all the defenses available against the payee: Sturges v. Miller, 80 Ill. 241.
Evidence of other fraudulent transactions of the same character, by the payee of the note, should be admitted: Hall v. Taylor, 18 N. Y. 589; 76 Ill. 230.
Messrs. WILDERMAN & HAMILL, for appellee; that the exercise of due diligence on the part of the signer of negotiable paper, is necessary, cited Homes v. Hale, 71 Ill. 552; Swannell v. Watson, 71 Ill 456; Sims v. Bice, 67 Ill. 88; Mead v. Munson, 60 Ill. 49; Leach v. Nichols, 57 Ill. 273; Taylor v. Atchison, 54 Ill. 196; Yocum v. Smith, 63 Ill. 321; Harvey v. Smith, 55 Ill. 224; Comstock v. Hannah, 76 Ill. 530.
Appellant is liable if he knowingly signed a note with a condition annexed, even if the condition was detached after its execution, the note being in the hands of an innocent holder: Elliott v. Levings, 54 Ill. 213; Clarke v. Johnson, 54 Ill. 296; Shipley v. Carroll, 45 Ill. 285; Harvey v. Smith, 55 Ill. 224.
Instructions calculated to mislead the jury should be refused: St. L. & S. E. R. R. Co. v. Britz, 72 Ill. 256.
The instrument being payable to bearer, did not require indorsement: Rev. Stat. 1874, Chap. 98, § 8; 2 Parsons on Notes and Bills, 33; 1 Parsons on Contracts, 24; Mercer County v. Hackett, 1 Wall. 95; E. & H. R. R. Co. v. Hunt, 20 Ind. 467; Jones v. Nellis, 41 Ill. 482; Miller v. Race, 1 Smith's Lead. Cas. 250; Binz v. Weber, 81 Ill. 288; Johnson v. County of Stark, 24 Ill. 85; Town of Eagle v. Kohn, 84 Ill. 295.
This was an action of assumpsit, instituted by the appellee upon a promissory note, executed by the appellant, and payable to one O. P. Baker, or bearer. The general issue was filed and several special pleas. The second plea avers “that the maker of the note was unable to read writing in the language in which the note was written; and that in signing the said note, he was told and induced to believe that he was executing a contract entered into between him and the payee of the note, for the purchase of lightning rods, and the paying therefor by feeding and taking care of a certain number of horses, then owned by the payee of the note.” The third special plea avers that Issue was joined on the several pleas, and the cause was submitted to a jury, and verdict returned for the appellee.
A motion for a new trial was overruled, and judgment was rendered upon the verdict. The appellant brings the cause to this court, and assigns as error, first, the giving of the first and second instructions for the plaintiff below. We think both instructions should have been refused. In the first instruction the jury are directed to find for the plaintiff if they believe, from the evidence, the defendant knew at the time he was signing the contract spoken of by him, that there was a note attached to it, and that the agreement spoken of by defendant in his evidence was that the note attached to it was to be paid by horse-feed; and that the plaintiff purchased the note for value before it was due, without notice, actual or constructive, of any defense to the note.” The fault in this instruction consists in not having any testimony upon which it can rest. The appellant is the only witness that testifies in reference to the contract, and he does not at any time state that he signed a contract with a note attached to it, but that he signed a contract or note which was conditioned to be paid in feeding and taking care of horses; that he was sure he never signed such a paper as the note sued on; that the paper he signed was twice as large as the note. There is another reason why these instructions should have been refused. The note is payable to O. P. Baker or bearer, and was passed to the appellee by delivery. Under Sec. 4, Chap. 98, R. S. 1874, promissory notes must be indorsed thereon under the hand of the payee, in order to vest the right of property absolutely in the assignee. And where suit is brought upon a promissory note by a person not the payee, and who becomes the owner thereof without its having been assigned, the maker can present his defense to the same extent that he could in case it was brought by the payee. Both instrucstructions are based upon the theory that if the appellee purchased the notes before maturity, without notice of any defense to the same, he stands in the...
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