Robertson v. Deatherage

• Decision Date: 30 September 1876
• Citation: 1876 WL 10242,82 Ill. 511
• Parties: J. E. ROBERTSONv.ROBERT DEATHERAGE.
• Court: Illinois Supreme Court

82 Ill. 511

1876 WL 10242 (Ill.)

J. E. ROBERTSON

v.ROBERT DEATHERAGE.

Supreme Court of Illinois.

September Term, 1876.

APPEAL from the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Mr. P. H. SANFORD, for the appellant.

Messrs. WILLIAMS, MCKENZIE & CALKINS, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Some time in June, 1871, The First National Bank of Knoxville was the holder of a note for $1000, against L. P. Robinson and Daniel Robertson, which was past due. The makers desired an extension of time for payment, to which the bank assented, provided further and satisfactory security should be given. L. P. Robinson was, as a matter of fact, the principal, and Daniel surety. A new note was made out and handed to the latter, who, about the 30th of July, returned it to the bank, signed by himself and L. P. Robinson and Elsia Robertson, when the president of the bank declined receiving it unless some responsible man would say that Elsia was good as surety for the amount. Thereupon, Daniel informed appellee what the president of the bank desired, and he, thereupon, went with Daniel to the bank, when he said to the president: “Mr. Runkle, I understand what you want to know of me is, whether Elsia Robertson is good for $1000,” to which Runkle replied, “Yes, that is what I want to know.” Deatherage then said: “Elsia Robertson is as good for that amount as any man in the county.” Thereupon Runkle pushed the note to him, and handed him a pen, and, as appellee says, Runkle said to him: “Then you would not be afraid to go his security for $1000?” Appellee replied, “No,” and signed the note. Runkle seems not to distinctly remember what he said, but Daniel Robertson testifies that Runkle said: “Then you would not be afraid to sign a note with him or for him?”

Appellee swears he was not informed that L. P. Robinson was the principal, and he signed the note as surety for Elsia Robertson, but admits there was no express agreement to that effect, but says such was his understanding.

The note was not paid at maturity, and suit was brought on it, and judgment was recovered against all but appellee. Daniel and Elsia Robertson paid it, in about equal portions, and Elsia brought suit against appellee for contribution. A trial was had before the court and a jury, resulting in a verdict in favor of defendant, upon which, after overruling a motion for a new trial, the court rendered judgment, and plaintiff appeals to this court.

Appellee claims that he only became security for Elsia Robertson, and the jury have so found. On the other hand it is claimed, that, as L. P. Robinson was principal, appellee could not become a surety of one of the sureties, without an understanding with all parties to the note to that effect, and that verbal testimony can not be heard to show that such was the arrangement, or if it could, the evidence in this case is not sufficient to show that relation.

In the case of Paul v. Berry, 78 Ill. 158, it was held, that, “as between the makers, there arises no presumption, simply from the note or the judgment, that the first signer, or any other number less than the whole, is or are to be treated as principal or principals, and the others are co-sureties; but it rests in evidence, to be introduced aliunde the note and judgment, to determine what relation they sustain towards each other--that the burthen is upon the plaintiff to prove he is surety, not only as between himself and another whom he claims to be principal, but also as between himself and another he claims to be a co-surety. Notwithstanding where it is established that two or more persons are co-sureties,...