Ward v. Stout
| Decision Date | 30 April 1863 |
| Citation | 1863 WL 3197,32 Ill. 399 |
| Parties | DANIEL WARDv.JOSEPH STOUT AND SAMUEL A. SUMMERS. |
| Court | Illinois Supreme Court |
ERROR to Circuit Court of La Salle County.
Assumpsit by plaintiffs in error against defendants in error upon a promissory note, of which the following is a copy:
+---------------------------------+
¦“$300.¦MARSEILLES, Nov. 25, 1857.¦
+---------------------------------+
For value received, we, or either of us, promise to pay Daniel Ward, or bearer, three hundred dollars, six months from date, for money loaned.
S. A. SUMMERS.
JO. STOUT.”
The pleadings are stated by the court.
Gray, Avery and Bushnell, for plaintiffs in error.
L. Umlauf, for defendant in error.
This record presents a single question of pleading and one of easy solution. The action was assumpsit on a promissory note, and in order that the points may be clearly seen, we insert the pleas, as amended by leave of the court. They are as follows:
By leave of court, and the said Joseph Stout, the said defendant, by Lewis Umlauf, his attorney, comes and defends the wrong and injury when, etc., and says actio non, because he says that the consideration of said promissory note in said plaintiff's declaration mentioned, to wit: the sum of three hundred dollars, was money loaned, to wit: at the said county of La Salle, by said plaintiff to said Samuel A. Summers, the joint and several maker with said defendant of the promissory note aforesaid; that no part of the consideration of said note, to wit: the sum aforesaid, came to or was received by said defendant, but that the whole consideration thereof, to wit: the sum aforesaid, came to and was received by said Samuel A. Summers, was principal debtor in said note, and that said defendant signed and became party to said note as security for said Samuel A. Summers; that said defendant became bound in said note as security for the payment of the money therein expressed, and not otherwise. And the said defendant distinctly avers that, at the time of the execution and delivery and before the delivery of said note to said plaintiff, to wit: on the 25th day of November, A. D. 1857, and to wit: at the county aforesaid, said plaintiff then and there knew all the aforesaid facts so to be. And said defendant says that shortly after the maturity of said note, to wit: on the 25th day of May, A. D. 1858, and to wit: at the county aforesaid, said defendant notified and requested said plaintiff to forthwith proceed and collect his said indebtedness, to wit: the sum of three hundred dollars, from said Samuel A. Summers; that said plaintiff, contrary to said defendant's said notice and request, forebore and grossly neglected, and wholly refused, to collect from said Samuel A. Summers the said sum of money, to wit: the sum of three hundred dollars, which sum of money last aforesaid was the amount due to said plaintiff upon the promise and undertaking in said promissory note expressed. And said defendant says that a long time after the said notice and request by said defendant to said plaintiff, to wit: in the month of May, A. D. 1860, being before the commencement of this suit, said Samuel A. Summers, to wit: at the county aforesaid, became insolvent and unable to pay and discharge his said debt in said promissory note expressed, to wit: the sum of three hundred dollars, or any part thereof. Said defendant avers that sufficient and ample time elapsed from the giving the notice and making the request aforesaid by said defendant to said plaintiff, to wit: from the 25th day of May, A. D. 1858, until the said insolvency of the said Samuel A. Summers, to wit: in the month of May, A. D. 1860, for said plaintiff to have (to have) collected and made his claim, to wit: the amount promised in said note, from said Samuel A. Summers. And said defendant says, that during the whole period of said time, that is to say, from the maturity of said note, and from the giving the notice and making the request to collect as aforesaid, until the said insolvency of the said Samuel A. Summers, the said Samuel A. Summers was in good circumstances, and was well able to have paid his said indebtedness to said plaintiff; and that said plaintiff, during the time last aforesaid, to wit: from the 25th day of May, A. D. 1858, until the month of May, A. D. 1860, could have collected and made good the said indebtedness to him from the said Samuel A. Summers, if the said plaintiff had used and exercised ordinary care and diligence in the collection of his said indebtedness from said Samuel A. Summers. But the said plaintiff, heedless and unmindful of the aforesaid notice and request, given and made to him by said defendant, as aforesaid, grossly neglected and wholly refused thereupon, and ab injuria sua, to collect and recover his said indebtedness from the said Samuel A. Summers. By reason and in consequence of said plaintiff's said gross negligence, laches, and refusal to collect his said indebtedness from said Samuel A. Summers, after the said notice and request by said defendant to said plaintiff; and by reason and in consequence of the said subsequent insolvency of the said Samuel A. Summers, said defendant has lost and has been deprived of any and every indemnity which otherwise he might and should have obtained and procured from the said Samuel A. Summers, to secure and indemnify said defendant from all harm in the premises, to the great loss, damage and injury of him, the said defendant, if the said plaintiff should maintain his aforesaid action thereof against him, the said defendant. And this the said defendant is ready to verify; wherefore he prays judgment if the said plaintiff ought to have or maintain his aforesaid action thereof against him, etc.
And for a further plea in this behalf, the said defendant says actio non, because he says that the consideration of said promissory note mentioned in said plaintiff's declaration was the sum of three hundred dollars, of money loaned by said plaintiff to said Samuel A. Summers, the joint and several maker with said defendant of said promissory note; that no part of said consideration, to wit: the sum aforesaid, came to or was received by said defendant, but that the whole consideration of said note, to wit: the sum aforesaid, came to and was received by said Samuel A. Summers; that said Samuel A. Summers was principal debtor in said note; that said defendant signed and became party to said note as security for said Samuel A. Summers, and that said defendant became bound as security in said note for the payment of the money therein expressed, and not otherwise. Said defendant avers that, at the time of the execution and delivery of said note, to wit: on the 25th day of November, A. D. 1857, to said plaintiff, and to wit: at the said county of La Salle, said plaintiff then and there knew all the aforesaid facts so to be. And said defendant says, that shortly after the maturity of said note, to wit: on the 25th day of May, A. D. 1858, and to wit: at the county aforesaid, said plaintiff, for a valuable and binding consideration, to wit: for the sum of thirty-six dollars, to him then and there in advance in hand paid by the said Samuel A. Summers, the said plaintiff, for the consideration aforesaid, to wit: for the sum of thirty-six dollars, specially contracted and agreed then and there with (the) said Samuel A. Summers, to postpone and extend the time for the payment of said note; and that said plaintiff then and there, after the maturity of said note for the consideration aforesaid, to wit: for the sum of thirty-six dollars, to him in advance paid by said Samuel A. Summers, actually did postpone and extend the time, to wit: for the space of six months, until the 25th day of November, A. D. 1858, for the payment of said promissory note to said Samuel A. Summers, without the knowledge and consent of said defendant; and said defendant says that afterward, to-wit: on the 25th day of November, A. D. 1858, to wit: at the county aforesaid, said plaintiff, without the knowledge or consent of said defendant, did, for a second time, then and there specially contract and agree with said Samuel A. Summers, and said plaintiff did then and there extend to said Samuel A. Summers, and without the knowledge and consent of said defendant, for a valuable consideration, to wit: for the further sum of thirty-six dollars, to him paid by said Samuel A. Summers, the time for the payment of said promissory note, to wit: from the 25th day of November, A. D. 1858, until the 25th day of May, A. D. 1859. And said defendant says that afterward, and at another time, to wit: on the 25th day of May, 1859, and to wit: at said county, said plaintiff then and there, without the knowledge and consent of said defendant, specially contracted and agreed to, and actually did postpone and extend the time for the payment and collection of his said...
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