Skelton v. Dustin

• Decision Date: 31 January 1879
• Citation: 92 Ill. 49,1879 WL 8477
• Parties: JOHN R. SKELTONv.WILLIAM M. DUSTIN.
• Court: Illinois Supreme Court

92 Ill. 49

1879 WL 8477 (Ill.)

JOHN R. SKELTON

v.WILLIAM M. DUSTIN.

Supreme Court of Illinois.

January Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Logan county; the Hon. LYMAN LACEY, Judge, presiding.

This was an action by Dustin against Skelton as indorser of a bill of exchange, as follows:

+---------------------------------------------+
                ¦$455.14¦“ Skelton, Ill., September   7, 1875.¦
                +---------------------------------------------+
                

At sight pay to the order of John R. Skelton four hundred and fifty-five dollars and fourteen cents, value received, and charge the same to account of,

+-------------------------------------+
                ¦To W. C. BARRETT & CO.,¦H. W. BARKER.¦
                +-----------------------+-------------¦
                ¦Indianapolis, Ind.”    ¦             ¦
                +-------------------------------------+
                

Across the face is written: “Good. Sept. 10, 1875. W. C. Barrett & Co.”

A verdict and judgment were rendered in favor of the plaintiff for $490.44, and the defendant appealed.

It was in proof that Barker, the drawer of the bill, was the agent of W. C. Barrett & Co., and was, at the date of the bill, buying grain for them at Skelton, Ill., and gave the bill to Skelton in payment for corn purchased of him. Dustin was a banker. He discounted the bill for Skelton on the 7th day of September, 1875, the latter indorsing it in blank. It was presented for payment on the 13th day of September, 1875, and payment refused, and on the same day it was duly protested for non-payment by a notary public of Indianapolis, Indiana. At the trial Barker testified that in August, 1875, he went to Dustin's bank and handed him the two following letters:

“ Champaign, Ill., August 30, 1875.

WM. M. DUSTIN, Lincoln, Ill.

Gent: If W. C. Barrett & Co. wishes to draw on either us or their bank in Indianapolis it will be all right, as they are good for all their contracts.

Yours, respectfully,

BURNHAM, CONDIT & CO.”

“ Indianapolis, Ind., August 31, 1875.

WM. M. DUSTIN, Lincoln, Ill.

Dear Sir: Mr. Wm. H. Barker, our agent, will call on you and will want to do some business through your bank in this way. Any drafts he may draw on us at sight, or any drafts that he may recognize that are drawn by other parties, you will greatly oblige by cashing same, and we will protect here. Trusting you will favor us by so doing, we remain yours truly,

W. C. BARRETT & CO.”

After reading which, Dustin said he would accommodate them. The witness was then asked by plaintiff's counsel if afterward Dustin cashed any drafts for witness that were drawn by him on W. C. Barrett & Co., which question, on objection, was excluded by the court. The defendant, after testifying in his own behalf that he brought the draft to Dustin, handed it to him, and the latter handed it back and told defendant to write his name on the back, was then asked by defendant's counsel what else was done and said; to state all the conversation that took place at that time; whether Dustin stated that he had made arrangements with Barrett & Co. by which he was to pay such checks as these? All which questions, on objection, were excluded by the court, and exception taken.

Messrs. BEASON & BLINN, for the appellant.

Messrs. HOBLETT & FOLEY, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

The exclusion of testimony is made the ground of one assignment of error. It is not entirely clear that the offered testimony of Barker as to Dustin cashing drafts for the witness drawn by him on W. C. Barrett & Co., might not have been properly received as showing, with other evidence, the circumstances under which the money was paid by Dustin to Skelton for the bill; but as there is no evidence bringing home to Skelton any knowledge of the cashing of such drafts, or arrangement for cashing them, we incline to think that for this reason the testimony might properly be rejected. Besides, the testimony already in showed sufficiently a promise to cash such drafts, which would establish such alleged arrangement under which it is claimed the money was paid by Dustin, and to show instances of the performance of the promise would be but cumulative testimony to an undisputed point, viz: the arrangement alleged. We think there was no material error in excluding this evidence.

As to the offered evidence of the defendant himself of the conversation which took place between him and Dustin at the time of the making of the indorsement, the effect of it, so far as could be of benefit to the defendant, would be to impair the legal effect of his indorsement in blank by proof of a different parol agreement. This is not admissible, as has been repeatedly ruled by this court. Mason v. Burton, 54 Ill. 349; Jones v. Albee, 70 Id. 34; Beattie v. Brown, 64 Id. 360. In the latter case, after expressing disapproval of the cases cited on the argument, which were to the effect that a blank indorsement is not really a written contract, but one resting in parol, and open to explanation by parol, it was said:

“It can not be a parol contract where the payee indorses a note in blank, for there is, in legal contemplation, written over his name, the extent and character of his undertaking, which can not be varied by parol,” and see Prescott Bank v. Caverly, 7 Gray, 217; Howe v. Merrill, 5 Cush. 80; Dale v. Gear, 38 Conn. 15; Woodward et al. v. Foster, 18 Gratt. 200; Charles v. Denis, 42 Wis. 56; Rodney v. Wilson, 67 Mo. 123; Coon v. Pruden et al. 24 Minn. The attempt in the present case was to vary by parol--by the conversation of the parties at the time--the legal effect of the indorsement in blank made by the payee. The surrounding circumstances, except as first noted, under which the indorsement was made were given in evidence, which is all we think the defendant was entitled to, and that the further offered evidence...