Stitzel v. Miller

• Decision Date: 19 April 1911
• Citation: 250 Ill. 72,95 N.E. 53
• Parties: STITZEL et al. v. MILLER.
• Court: Illinois Supreme Court

250 Ill. 72

95 N.E. 53

STITZEL et al.

v.MILLER.

Supreme Court of Illinois.

April 19, 1911.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Lee County; R. S. Farrand, Judge.

Action by George B. Stitzel and others against Loren B. Miller, administrator of D. C. Miller, deceased. From a judgment of the Appellate Court affirming a judgment for plaintiffs and granting a certificate of importance, defendant appeals. Reversed and remanded.Trusdell, Smith & Leech, for appellant.

H. A. Brooks, for appellees.

CARTER, J.

This is a suit in assumpsit brought by appellees in the circuit court of Lee county against appellant upon a promissory note dated February 22, 1908, payable one year after date to Harrison Miller and by him indorsed in blank and sold and delivered to appellees. This note was for the principal sum of $6,500, with interest at 6 per cent., and purported to be signed by D. C. Miller. The appellant filed a special demurrer, charging that the suit was prematurely brought and the note nonnegotiable. On the demurrer being overruled the appellant pleaded nonassumpsit, with a verification denying execution of the instrument. Upon a jury trial appellees obtained a verdict for $7,140.25. From the judgment entered thereon an appeal was prayed and allowed to the Appellate Court for the Second District. That court affirmed the judgment of the trial court and granted a certificate of importance. This appeal followed.

The original instrument sued on has been certified to this court. A printed blank prepared for the Stocking Trust & Savings Bank was used in making it. Everything is in print except the date, names, amount, time when payable and the rate of interest. The first part is printed in large type, and is the ordinary form of promissory note. A power of attorney to confess judgment follows in fine print, and thereafter, in like print, the following: ‘We also agree that in case said note is not paid at maturity, that it is at the option of the holder hereof to extend, as he deems proper, the payment of the above note, and that said extension shall not in any manner release one or either of us from the payment hereof.’

[1] It is urged that the quoted words render the instrument nonnegotiable. This court has held that a promissory note ‘may be defined to be a written promise by one person to pay to another person therein named, or order, a fixed sum of money at all events and at a time specified therein or at a time which must certainly arrive.’ McClenathan v. Davis, 243 Ill. 87, 90 N. E. 265,27 L. R. A. (N. S.) 1017. This definition substantially meets the requirements of the negotiable instrument act of 1907. The contention that said quoted words gave the holder the authority to extend the note as he pleased, that it could not be known what extensions he might grant, and that, therefore, the time when the note became due and payable was uncertain and indeterminate, rendering the note nonnegotiable, cannot be sustained. The note expressly provides that such option to extend can be exercised only upon the failure of the payors to make payment at its maturity. The time of payment is certain. The note is dated February 22, 1908, and payable one year thereafter. After a note is due its negotiability, for all practical purposes, is at an end. In Dorsey v. Wolff, 142 Ill. 589, 32 N. E. 495,18 L. R. A. 428, 34 Am. St. Rep. 99, it was held that a provision in a note that, if it was not paid when due and suit was brought thereon, the maker should pay an attorney's fee of 10 per cent., recoverable either in such suit or a separate action, did not destroy the negotiability of the note as it did not take effect until after maturity. Numerous authorities are cited from this and other states by counsel for appellant on this question. In most of them the note recites that the payee reserves the right of option of extension at any time, either before or after maturity, and we do not consider them in point. The quoted words do not affect the character of the note, before or up to its maturity, either in its certainty, amount to be paid, the date of payment or the person to whom the payment is to be made. The clause in question does not destroy the negotiability of the note. The following authorities in other jurisdictions tend to uphold this conclusion: National Bank v. Kenney, 98 Tex. 293, 83 S. W. 368;First Nat. Bank v. Buttery, 17 N. D. 326, 116 N. W. 341,16 L. R. A. (N. S.) 878, and note; Farmer, Thompson & Helsell v. Bank of Graettinger, 130 Iowa, 469, 107 N. W. 170;Anniston Loan & Trust Co. v. Stickney, 108 Ala. 146, 19 South. 63,31 L. R. A. 234, and note.

[2] The note being negotiable, the indorsement of the name of the payee on its back and its sale and delivery to appellees authorized them to maintain this action in their own names. Kistner v. Peters, 223 Ill. 607, 79 N. E. 311,7 L. R. A. (N. S.) 400, 114 Am. St. Rep. 362;Keenan v. Blue, 240 Ill. 177, 88 N. E. 553.

[3][4] The note matured February 22, 1909. The suit was begun December 19, 1908. The first summons not being served, a second was issued January 23, 1909, and served March 10th of the same year. It is insisted that the suit was prematurely brought. Without question there cannot be any recovery on an ordinary common-law action if the money is not due at the institution of the suit. Bacon v. Schepflin, 185 Ill. 122, 56 N. E. 1123, and cases cited; 1 Ency. of L. & P. 1082. We think this question was not properly preserved for review.

[5] It is further insisted that the trial court erred in refusing to admit certain other notes to be introduced in evidence for the purpose of showing that the signatures thereon and the signature on the note at issue were fac similes. The evidence shows that Harrison Miller and Lafayette Miller were nephews of D. C. Miller, deceased; that appellees purchased the note in this suit from Harrison Miller, and at the same time bought of him another note for $4,500, also dated February 22, 1908, purporting to be executed by Lafayette Miller and D. C. Miller, payable to the order of Harrison Miller and by him indorsed. Evidence was also offered tending to show that a suit had been brought in the district court of Scott county, Iowa, by L. C. Miller against Ella Quinn, executrix of the estate of James Quinn, deceased, upon a promissory note dated at Davenport, Iowa, September 14, 1907, for the sum of $15,000, purporting to be executed by James Quinn and payable to the order of D. C. Miller, bearing upon the back thereof the purported indorsement in blank of D. C. Miller; that in a trial in said district court of Iowa as to said note the purported signature of D. C. Miller on the back was shown to be a forgery; that appellant had asked but had been refused leave to withdraw said note from the files of that court for use in this trial; that a correct photographic copy, of natural size, had been procured of this note and the back thereof; that on the trial of said case in Iowa the testimony showed that the writing filling up the blanks on the face of that note was in the hand of Harrison Miller. Counsel for the appellant offered said $4,500 note and the photograph of the $15,000 note in evidence, and offered to prove by an expert that the purported signature of D. C. Miller on the note here in question, and on said $4,500 note, and on the back of the $15,000 note (as shown by the photograph), were identical in every particular, and, if superimposed, would exactly coincide. The court refused to permit this evidence to be introduced. It is insisted that, if these facts had been shown, the conclusion would necessarily have been drawn that the three alleged signatures of D. C. Miller were all tracings from the same signature. This court has laid down the rule that the genuineness of a signature cannot be proved by comparison with other admittedly genuine handwriting or signatures not admissible in evidence for other purposes or not already a part of the record. When, however, other writings or signatures admitted to be genuine are already in the case, comparison may be made by the jury, with or without experts. Himrod v. Gilman, 147 Ill. 293, 35 N. E. 373;Rogers v. Tyley, 144 Ill. 652, 32 N. E. 393;Bevan v. Atlanta Nat. Bank, 142 Ill. 302, 31 N. E. 679;Riggs v. Powell, 142 Ill. 453, 32 N. E. 482;Brobston v. Cahill, 64 Ill. 356;Jumpertz v. People, 21 Ill. 375;Massey v. Farmers' Nat. Bank, 104 Ill. 327.

[6] Counsel for appellant strenuously insist that the offered evidence does not come within the reasoning of the decisions in this state; that this rule against comparison of handwriting only applies where it is sought to show that a signature is like the typical signature of another. A witness who has seen another write is competent to testify, as is also one who has acquired a knowledge of the other's handwriting by correspondence or in the ordinary course of business. 2 Jones on the Law of Evidence, §§ 559, 561; 1 Greenleaf on Evidence (Lewis' Ed.) § 577. In a sense all evidence of handwriting is in the nature of comparison, except where the witness saw the act of writing. The general rule of the common law was that proof of handwriting by comparison, by placing the documents in juxtaposition, was not permissible. There were, however, two exceptions that were as well recognized as the rule itself: First, where writings otherwise irrelevant, offered for the mere purpose of comparison, were admitted when the writing in issue was so ancient as not to admit of proof from knowledge derived from seeing the party write; and second, where other writings were legitimately in the case for other purposes. 15 Am. & Eng. Ency. of Law (2d Ed.) 265; 3 Wigmore on Evidence, § 1991; 1 Greenleaf on Evidence (Lewis' Ed.) § 578. The tendency of legislation, as well as of judicial decisions, is to relax this rule, and to enlarge upon its exceptions, or, rather, to permit a more liberal use of comparison with any writing...