White v. Clayes

• Citation: 32 Ill. 325,1863 WL 3188
• Parties: JACOB H. WHITEv.LEVI M. CLAYES.
• Decision Date: 30 April 1863
• Court: Illinois Supreme Court

32 Ill. 325

1863 WL 3188 (Ill.)

JACOB H. WHITE

v.LEVI M. CLAYES.

Supreme Court of Illinois.

April Term, 1863.

APPEAL from Circuit Court of Will County.

Assumpsit by appellee, the holder of a promissory note, against the appellant, as indorser thereof.

The pleadings, evidence, and instructions, are sufficiently stated by the court for a full understanding of the case.

Osgood & House, for appellant.

R. E. Barber, for appellee.

WALKER, J.

The third plea to the first count of plaintiff's declaration was held bad on demurrer. It averred that when the note fell due the maker was solvent, but plaintiff had failed to institute a suit for its collection. This plea does not answer or traverse all of the material allegations of the count, and does not, therefore, amount to the general issue. It was no doubt intended for a special traverse of a material allegation of the count, and if it traverses such an allegation it would be a good plea. The allegation in the count was, that the maker of the note was insolvent when the note fell due, and continued so until this suit was instituted, and a suit on the note would have been unavailing. The plea only avers that he was solvent at the maturity of the note, and does not allege that he continued so until a suit could have been made availing. The averment of the plea is not sufficiently broad to traverse this allegation. It could make no difference if the maker was solvent at the maturity of the note, if he did not continue so until a suit could have been made availing. The right of recovery is based upon the averment that a suit against the maker would have been unavailing, and the maker may have been solvent on the day the note fell due, and he may have become insolvent before a recovery could have been had.

It is insisted that the evidence fails to sustain the verdict, and that the court below erred in overruling the motion for a new trial. The evidence appears to have been somewhat conflicting, and not of the most conclusive character. It was the province of the jury to weigh and give to it all the consideration to which it was entitled. And their opportunity for estimating its true character was superior to ours, and we do not feel inclined to interfere unless there was a want of evidence to support the verdict. We are not prepared to say that it is not supported by the evidence.

Exception is taken to the instruction given by the court, that if the institution of a suit would have been unavailing to collect the entire debt, then the plaintiff had the right to recover. This was announced in several of plaintiff's instructions. And the same rule is announced in a modification to defendant's first instruction, when the jury are informed that the allegation in plaintiff...