Rhode v. Mclean

• Decision Date: 18 January 1882
• Parties: WILLIAM RHODE et al.v.MATTIE MCLEAN.
• Court: Illinois Supreme Court

101 Ill. 467

1882 WL 10186 (Ill.)

WILLIAM RHODE et al.

v.MATTIE MCLEAN.

Supreme Court of Illinois.

Filed at Mt. Vernon Jan. 18, 1882.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court for the Fourth District;-- heard in that court on writ of error to the Circuit Court of Richland county; the Hon. WILLIAM C. JONES, Judge, presiding.

Messrs. BELL & GREEN, and Mr. J. P. ROBINSON, for the plaintiffs in error:

The bond was shown to have gone into the hands of Henry Blatter, and he should have been called to account for it, before the admission of secondary evidence. 1 Greenleaf on Evidence, sec. 558; Parkins v. Cobbett, 11 Eng. C. L. 394; Chapin v. Taft, 18 Pick. 379.

And what Blatter said to Morehouse about the bond being destroyed, was no evidence against the other defendants. Blatter was a competent witness for the plaintiff, and could have been compelled to produce the bond on the trial. Rev. Stat. chap. 51, secs. 6, 9.

Where a written instrument is traced to the hands of a particular person, that person must be called and sworn to give an account of it. The King v. The Inhabitants, etc. 6 T. R. 236; Jackson v. Hasbrouck, 12 Johns. 192; Woods v. Garrett, 11 N. H. 442; Poignand v. Smith, 8 Pick. 278; The Governor v. Barkley, 4 Hawks, 20. See, also, as to the diligence required, Mariner v. Saunders, 5 Gilm. 113; Rankin v. Crow, 19 Ill. 626; Cook v. Hunt, 24 Id. 535; Williams v. Case, 79 Id. 356; Wing v. Sherrer, 77 Id. 200; Railway Company v. Ingersoll, 65 Id. 399. The substance of a lost paper ought to be proven satisfactorily, and its contents should have been known to the witness, and understood by him, so as not to leave any doubt as to its material parts; and when the proof is made out by parol, the witness should have seen and read the paper, and be able to speak pointedly and clearly as to the tenor and contents. Rigg v. Taylor, 1 Pet. 591; United States v. Britton, 3 Mason, 464; Rankin v. Crow, 19 Ill. 626.

The law is well settled, that where a surety signs a note or obligation of any kind, on the express condition that it is to be signed by another person, as a co-surety, before it is delivered, and it is delivered without being so signed, the payee, or obligee, being chargeable with notice of such condition, such facts constitute a good defence to any action brought upon such instrument against the surety. Stricklin v. Cunningham, 58 Ill. 293; Allen v. Marney, 65 Ind. 398.

Mr. J. M. LONGENECKER, and Messrs. WILSON & HUTCHINSON, for the defendant in error:

As to the last point made, that the plaintiffs in error never consented to the delivery of the bond until it was signed by other obligors, the law is settled against the plaintiffs in error. Smith v. Peoria Co. 59 Ill. 412; Comstock et al. v. Gage, 91 Id. 335.

The objection that the statement of Blatter that the bond was destroyed does not bind his co-defendants, is not sustained by authority. 1 Greenleaf on Evidence, pp. 252, 253; Wharton on Evidence, secs. 1091-2, sec. 143.

“If a document is conceded by the party in whose hands it was last heard from, to have been lost or destroyed, then notice to him to produce it is unnecessary. He is estopped from setting up such possession of the paper as would make a notice to produce of use.” Wharton on Evidence, sec. 161.

The loss is proved by the clerk's certificate or oath, where the statute requires it to be filed. Abbott on Trial Evidence, sec. 14, p. 510. Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action upon an appeal bond, given upon an appeal from a judgment of the circuit court of Richland county to the Appellate Court, brought against the sureties, wherein the plaintiff recovered, and the defendants bring the case here upon writ of error.

The questions made upon the record are the three following: First, that there was no sufficient foundation laid for the reception of secondary evidence, which was admitted, of the contents of the bond sued on; second, that the copy of the bond read in evidence was not shown to be a true copy of the original bond; and third, that the court below wrongly excluded the evidence offered by the defendants, that they signed the bond on condition that it was not to be used unless signed by other parties, who did not sign it, and that it was used contrary to such condition.

The appeal to the Appellate Court, upon which the appeal bond was given, was taken by Henry Blatter, who was the principal obligor in the bond. Mr. Knoph, the then clerk of the circuit court of Richland county, testified, that within the time limited for giving the appeal bond Blatter handed to him, in his office, an appeal bond, signed by Blatter and the defendants, and he approved the bond and filed it; that the next morning Blatter came into the office and asked witness for the bond, saying he would return it in a little while; that witness gave him the bond, and he took it away, and witness had not seen it since.

Mr. Morehouse, the deputy clerk, testified, that at the request of Mr. Knoph he went to Blatter and asked him for the appeal bond; that Blatter did not give it to him, but promised to return it in a few days; that he never did return it to the clerk's office, where he got it; that witness afterwards, at the request of Mr. Tippit, the succeeding circuit clerk, went to Blatter and demanded the bond, and the latter said he did not have the bond, and that it was destroyed. Mr. Tippit, the present circuit clerk, testified that in addition to sending his deputy clerk, Mr. Morehouse, for the bond, he himself demanded the bond of Blatter, and the latter said he did not know anything about it. There was proof that after diligent search in the clerk's office the bond could not be found there.

The objection is taken, that as the bond was traced to the hands of Blatter, he should have been produced as a witness to account for it, referring to Mariner v. Saunders, 5 Gilm. 113,...