Wyman v. Yeomans
| Decision Date | 31 January 1877 |
| Parties | SILAS WYMANv.C. H. YEOMANS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Ford county; the Hon. THOMAS F. TIPTON, Judge, presiding. Messrs. POLLOCK & SAMPLE, for the appellant.
Mr. J. R. KINNEAR, for the appellee.
This appeal is prosecuted to reverse a judgment of the court below overruling a motion to open a judgment entered in vacation on a note and cognovit. The motion was supported by affidavits showing that the dates of the note and cognovit had been changed, subsequent to appellant's signing the same, so as to make them bear date one year later than they did when signed; also, that appellant was the surety, only, of one Chenoweth, who was the principal maker of the note, and when he signed it, it was upon the express condition, and so understood and agreed between him and Chenoweth, that the note was not to be delivered to the payee, or become obligatory as a note, until certain other named parties also signed it as co-sureties with appellant, and that the note was delivered to the payee in violation of such understanding and agreement; and, also, that, after the maturity of the note, appellant gave notice to the payee, in writing, to bring suit upon the note at once, which he neglected to do; that the principal was solvent at the maturity of the note, and the amount thereof could have been collected on execution against him, but that at the time judgment was entered, the principal had become, if not entirely insolvent, in a precarious financial condition.
The fact of the alteration is proved by the affidavits of appellant and Chenoweth, and admitted by the affidavit of appellee. The note and cognovit, though actually executed on the 5th day of January, 1876, were dated January 5, 1875. It is shown that this was the mistake, in the first instance, of the payee in drafting the instruments--it being so near the change of the year that he had not become accustomed to it, and inadvertently wrote 1875, instead of 1876. It is shown by the affidavits, however, of both appellant and Chenoweth, that, when appellant signed the note, he called attention of Chenoweth to the date it bore, and that, by Chenoweth's request, he advisedly signed it bearing that date, and he subsequently refused to allow the payee to change the date. The alteration consisted in changing the year of the date from 1875 to 1876. Appellee's excuse for making the alteration is, that, when he purchased the note of the payee, it was spoken of as having been executed in 1876, and that he purchased it, supposing the note was so dated; that, as he was about to prepare the declaration preliminary to obtaining judgment on the note, he observed the last figure in the date was written “in a faded, or light and crooked figure, which looked rather more like a figure 5 than a figure 6;” and that he then, “supposing said note was actually dated January 5, 1876, and that by all of the parties to said note it was considered 1876,” * * “without consulting any one, endeavored to make said figure a plain 6,” which he supposed it was intended for by the parties signing it, and he drew the declaration accordingly; but he says that, afterwards, and before judgment was entered on the note, on learning from the payee that the note was actually dated 1875 when signed, though by inadvertence, and that appellant had refused to have it changed to 1876, he corrected the date so as to make it as plain a figure 5 as he could, and so declared on it. He only took judgment for interest, in addition to the principal, from January 5, 1876.
How the 5 at the conclusion of the cognovit got changed to 6, appellee does not attempt to explain.
That the alteration was material, so far as the surety was concerned, can admit of no controversy. His undertaking, as made, was for a sum then...
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