Schultz v. Bank1

• Decision Date: 24 March 1892
• Citation: 30 N.E. 346,141 Ill. 116
• Parties: SCHULTZ v. PLANKINTON BANK.
• Court: Illinois Supreme Court

141 Ill. 116

30 N.E. 346

SCHULTZ

v.PLANKINTON BANK.¹

Supreme Court of Illinois.

March 24, 1892.

Error to appellate court, first district.

Assumpsit by the Plankinton Bank against Albert Schultz as indorser of a promissory note. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant brings error. Affirmed.

Kraus, Mayer & Stein, for plaintiff in error.

Moses & Pam, for defendant in error.

CRAIG, J.

This was an action of assumpsit, brought by the Plankinton Bank against Albert Schultz as indorser of a promissory note, which read as follows:‘Milwaukee, June 18, 1888. Ninety days after date I promise to pay to the order of Albert Schultz two thousand dollars, payable at the Plankinton Bank. Value received. [Signed] HENRY SCHULTZ. [Indorsed:] ALBERT SCHULTZ.’ At the time the note was executed, Henry Schultz was doing business in Milwaukee, Wis., under the style of ‘The H. Schultz Cloak Manufacturing Company,’ and was indebted to the Plankinton Bank of Milwaukee. He desired to secure more money from the bank, and, in order to do this, asked his son, Albert Schultz, to indorse his note to the bank for $2,000, which he did, and the note was accordingly executed, indorsed, and delivered to the bank. On the 19th day of July, 1888, Henry Schultz, for the purpose of securing his indebtedness to the bank, executed and delivered a chattel mortgage on his goods and other personal property. The mortgage was in the usual form, and, after describing the property conveyed, contained the following provision: ‘To have and to hold the same forever, upon condition that if said mortgagor shall pay to said mortgagee the sum of one hundred seventy-five and forty-four hundred ths dollars now owing said mortgagee by said mortgagor for an overdraft to that amount of his deposit account by him kept with said bank and mortgagee, on demand, and with interest thereon from the date hereof, and the further sum of seven thousand and five hundred ($7,500) dollars owing said mortgagee by said mortgagor upon his certain five several promissory notes now held and owned by said bank, mortgagee, on all of which notes said mortgagor is liable as maker, which said notes are more particularly described as follows: Note for $2,500, dated March 3, 1888, bearing interest at seven per cent., due on demand; note for $500, dated May 12, 1888, bearing interest at seven per cent., due August 13, 1888; note for $1,250, dated June 18, 1888, bearing interest at seven per cent., due September 19, 1888; note for $2,000, dated June 18, 1888, bearing interest at seven per cent., due September 19, 1888; note for $1,250, dated July 14, [141 Ill. 118]1888, bearing interest at seven per cent., due October 15th, 1888,-then these presents shall cease and be void.’ On the 3d day of August, 1888, Schultz being unable to pay, the mortgaged property was sold by the bank with the written contract of Schultz for the sum of $2,900, and the money realized was applied on the mortgage indebtedness in the order in which it matured. Nothing having been paid on the note bearing date June 18, 1888, and Schultz, after the sale of his property, being insolvent, this suit was brought against the defendant as indorser of that note.

Before the commencement of the trial defendant entered a motion for a continuance of the cause, and in support of the motion filed an affidavit, the material portion of which was as follows: That said Henry Schultz was, on or about the 19th day of July, 1888, indebted to said plaintiff in the sum of about seventy-five hundred dollars, including the note in controversy; that said amount was represented by five or more promissory notes of various sums; that at said time said Henry Schultz was engaged in said city of Milwaukee in the business of manufacturing and selling cloaks, and at said time said Henry Schultz was indebted to divers other parties in various other sums, aggregating several thousands of dollars; that at said time said Henry Schultz was unable to promptly pay such indebtedness; that said Henry Schultz insisted to said plaintiff that it was his moral and legal duty to take care first of the accommodation paper so as aforesaid executed and delivered by this deponent, and which is the note in controversy, before protecting or securing the said plaintiff; that thereupon the plaintiff agreed with said Henry Schultz that if the said Henry Schultz would make such transfer as requested by said plaintiff, said plaintiff would, out of the proceeds of the property so to be transferred, first pay off and take up the said accommodation note of this defendant, being the note in controversy; that said Schultz would not have made a transfer as thus requested, to said plaintiff, if such agreement had not been made; but, relying upon such agreement, said Henry Schultz did make such transfer of all his property to said plaintiff upon the express understanding and agreement with said plaintiff that said plaintiff would convert said property into cash, and out of the same first pay the said note of this defendant. The affidavit further set up that the property was sold and converted into cash, but the plaintiff failed and refused to apply the proceeds on the note. For the purpose of avoiding a continuance, the plaintiff admitted the affidavit, and a trial was had before the court without a jury, and the court rendered a judgment for the plaintiff for the amount due on the...