Taylor v. Atchison

• Decision Date: 30 June 1870
• Citation: 54 Ill. 196,1870 WL 6288,5 Am.Rep. 118
• Parties: JEREMIAH TAYLORv.THOMAS ATCHISON.
• Court: Illinois Supreme Court

54 Ill. 196

1870 WL 6288 (Ill.)

5 Am.Rep. 118

JEREMIAH TAYLOR

v.THOMAS ATCHISON.

Supreme Court of Illinois.

June Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Jefferson county; the Hon. JAMES M. POLLOCK, Judge, presiding.

The opinion states the case.

Messrs. TANNER, CASEY & WILBANKS, for the appellant.

Mr. C. H. PATTON and Mr. J. K. ALBRIGHT, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of assumpsit, brought by appellant in the Jefferson circuit court, against appellee, on a promissory note for $140, payable to S. W. Barbour, on the first of October, 1868, with interest, and bearing date the sixteenth of May, of the same year. The note was assigned to appellant, without recourse, and the endorsement is without date. The general issue, and a plea that the note was obtained by fraud and circumvention, was filed, and a trial was had by the court without a jury, by consent of the parties. After hearing the evidence, the court below found for defendant, and rendered judgment for costs. A motion for a new trial was entered, but was overruled by the court, and judgment rendered on the finding, and the record is brought to this court on appeal, and a reversal is asked.

It appears that Barbour and Lowry went to the house of appellee, in the spring of 1868, and represented that they were procuring agents to sell reapers, screw forks and mowers, and solicited appellee to become an agent for their sale, in two townships. He declined, saying he would not become bound for anything, and they represented that they wanted no obligation of any kind. Appellee then assented, upon the condition that he should incur no liability. They agreed to send implements to the express office at Mt. Vernon, Jefferson county, in this State, and he was to incur no expense, or pay anything on the machines, except express charges. The prices at which they were to be furnished, and the commissions he was to receive, were agreed upon at the time.

They then proposed to give him an agreement that would protect him in making sales, as the articles were patented. Barbour prepared an agreement, which was handed to appellee for his signature, but being unable to read it without much difficulty, he requested that it be read, which Lowry did. Another instrument was then presented, which they assured him was a duplicate, when he signed both papers. Appellee and one Allen, who was present, both swear that both papers were larger than this note, and about the same size, and neither of them resembled the note sued upon in appearance--that they were much larger. We are satisfied that the testimony given by appellee, and corroborated by Allen, establish these facts.

That appellee did not design to execute the note, and was ignorant of the fact that he had, we think is clearly established by the evidence. We presume that Barbour must have attached the note at the bottom of the page, and below another writing, and thus procured his signature to the note without exciting the suspicion of either appellee or Allen, and subsequently detached it from the other written matter; that there was a fraudulent device and trick practiced, by which appellee was circumvented, is obvious. That it was an outrageous, unmitigated fraud, we entertain no doubt.

It, however, remains to determine, whether it constitutes such a fraud or circumvention as was contemplated in the adoption of the eleventh section of the chapter entitled “negotiable instruments.” It is urged that it is not, as appellee could read, and it was his duty to have availed himself of all the sources of information at his command, precisely as should the purchaser of personal property, as...