Shephard v. Calhoun
| Decision Date | 30 June 1874 |
| Citation | 72 Ill. 337,1874 WL 8818 |
| Parties | WILLIAM SHEPHARDv.ADARASTUS CALHOUN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Jersey county; the Hon. CHARLES D. HODGES, Judge, presiding.
Mr. GEORGE W. HERDMAN, and Mr. R. M. KNAPP, for the plaintiff in error.
Messrs. WARREN & POGUE, for the defendant in error.
This was an action by Calhoun against Shephard, surviving partner of the banking firm of William Shephard & Co., composed of Shephard and Milton D. Robbins, to recover the amount of a promissory note for $1000 in favor of Calhoun, which he had previously left with said banking firm for collection. The plaintiff below recovered, and Shephard appeals.
The question presented is one of fact.
The note was collected, and the point in dispute is, whether Calhoun was given credit for the proceeds on another $4000 note, which Wm. Shephard & Co. held for collection against Calhoun.
The proof shows that, on the 6th of February, 1871, Calhoun executed a promissory note for $4000, payable to the order of Wm. Shephard & Co., three months after date, with ten per cent interest, with thirty per cent per annum after maturity, as liquidated damages. The note belonged to one Harley E. Hayes, who had it taken payable to Shephard & Co.'s order, that they might assign it to him, and so become liable as assignors; they did assign the note to Hayes, and he then left it at Shephard & Co.'s bank, for collection.
On the 7th of February, 1872, one Joseph G. Marston, as principal, with Milton D. Robbins, one of the firm of Wm. Shephard & Co., as surety, executed to Calhoun a promissory note for $1000, payable six months after date, without interest until due. This note, which is the one involved in this suit, Calhoun, on the same day it was given, placed in the bank of Shephard & Co. for collection, the proceeds, when collected, to be placed as a credit on the $4000 note. On the 14th of February, 1872, Marston, the maker of the $1000 note, paid to Wm. Shephard & Co. $958.35, in full of the note, and took it up, they allowing him a discount of $41.65, as the note would not be due for six months, and was drawing no interest.
Hayes, the owner of the $4000 note against Calhoun, testified that, on the 13th day of February, 1872, Wm. Shephard & Co. placed a credit on the $4000 note of $1700, and that he received the money from Wm. Shephard & Co.; that he did not know whose money it was, or where it came from; that Calhoun afterwards paid Wm. Shephard the balance of the $4000 note, being $2850, and the note was given up to Calhoun in January, 1873. On the back of the $4000 note are the following indorsements of credits, all in the handwriting of Milton D. Robbins: “Aug. 6, '71, paid two hundred dollars;” “Feb. 6, '72, paid two hundred dollars;” “paid fifteen hundred dol??ars Feb. 13th, 1872.”
This comprises, substantially, all the testimony.
The theory of appellant is, that the $958.35 paid by Marston to Shephard & Co. in full of the $1000 note, February 14, 1872, formed a part of the $1500 indorsed on the $4000 note against Calhoun February 13, 1872, or that the $1500 so indorsed, was the money of Wm. Shephard &...
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...agent is authorized to receive payment, will bind the principal: Noble v. Nugent, 89 Ill. 522; Yates v. Valentine, 71 Ill. 643; Shepard v. Calhoun, 72 Ill. 337. Messrs. BROWN, KIRBY & RUSSELL, for appellees; that an authority to an agent to receive payment does not authorize him to receive ......
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...on the note, and not by a stranger to the contract; and, if such is not the case, it can be properly raised by answer. In Shephard v. Calhoun, 72 Ill. 337, it was held payment, when indorsed on a promissory note, was presumed to be made by the maker; and in Bell v. Campbell (Mo.) 25 S.W. 35......
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