« ΠροηγούμενηΣυνέχεια »
West note in payment of said West-Munroe note, or in exchange for the same. Said Times-West note purported to be executed by the Times company and was payable to James J. West. It was for the amount of the principal and interest of the West-Munroe note and was endorsed in blank by said West, hence West, who was liable to pay the West-Munroe note, was also liable to pay
the Times-West note. But the evidence tended to prove that West was insolvent, and that the said notes, so far as his liability thereon was concerned, were worthless, while the note of the Times company-if it was the note of said company given for value and not as mere accommodation paper-was good and worth its face. The law would be, however, that if said West-Munroe note was paid to the plaintiffs in error as pledgees they would be liable to account for its face to the defendant in error, the owner, whether the note was valueless or not. Having received payment, the question of its prior value became immaterial. Nor would it be material on the question of their liability whether they accepted such payment in money or in another note,- if there was, in fact, a payment, they having no authority from the pledgor to receive any. thing in payment except its full face value in money.
There were, then, two important questions of fact before the jury: First, was the making, delivery and acceptance of the Times-West note a payment of said WestMunroe note; and second, if not, was it an exchange of one for the other, as alleged in the second of the additional counts, the second note becoming the property of the pledgor. If it was the latter, then the defendant in error had the right to treat such exchange as made for his benefit, and to hold the plaintiffs in error to the same accountability for said Times-West note so taken in exchange as for the one for which it was exchanged.
The contention of plaintiffs in error is that West had no authority to execute the Times-West note, for and in the name of the Times company, payable to himself; that
his authority, as president, to execute commercial paper for the company did not authorize him to make and issue the note of the company to himself and with which to pay and take up his own obligation,-citing Dobson v. More, 164 Ill. 110, Park Hotel Co. v. Fourth Nat. Bank, 86 Fed. Rep. 742, and other cases. This proposition of law and fact is urged in support of the one that the TimesWest note was of no value as a note against the company because legally unenforceable against it, but was only enforceable against West, the endorser, and that therefore the jury could not find that by its surrender the defendant in error had lost its value as a note against the Times company. The legal proposition involved need not be controverted; but the jury found the facts the other way,—that is, that West did have authority to make and deliver the note, and that it was made to take up the West-Munroe note because the money for which the latter note was given was borrowed for and was used by the Times company. Nor can it be said that this finding was without evidence to support it. There was such evidence, and as a question of fact it was not controverted by evidence. With these facts established or before the jury it would have been error to give said second refused instruction on behalf of plaintiffs in error.
Nor do we think that the legal results declared by the third refused instruction would necessarily follow from the fact recited in that instruction. The manner in which the books of the Times company were kept would not conclusively determine that the original indebtedness was not in reality that of the Times company instead of that of West. They were facts proper to be considered, but in no view were they conclusive.
We cannot see that the said sixth and ninth instructions given at the request of the plaintiff below are open to the objection urged, that they told the jury that the debt for which the West-Munroe note was given was in reality the debt of the Times company. The instructions
did not conclude the jury on that question, but left it to be determined from the evidence.
The record does not sustain counsel in his assignment of errors, and no error appearing, the judgment of the Appellate Court must be affirmed.
JOHN IRVING PEARCE et al.
Opinion filed October 24, 1901.
APPEALS AND ERRORS— Appellate Court should not dismiss appeal, of its own motion, for an irregularity in bond. If an appeal bond misrecites the judgment and leave is given by the Appellate Court to file a new bond, and the latter is presented by the appellants in good faith and ordered filed by the Appellate Court, to be given effect nunc pro tunc, it is error for the Appellate Cou covering an alleged irregularity in the new bond when considering the errors assigned after the submission of the case, to dismiss the appeal of its own motion.
APPEAL from the Appellate Court for the First District;-heard in that court on appeal from the Superior Court of Cook county; the Hon. AXEL CHYTRAUS, Judge, presiding
JAMES EDWARD PURNELL, and BRODE B. DAVIS, for appellants.
W. O. JOHNSON, D. J. & D. J. SCHUYLER, Jr., and JOHN STIRLEN, for appellee.
Mr. JUSTICE Boggs delivered the opinion of the court:
On the 19th day of May, 1900, the appellee caused judgment to be entered by confession in the superior court of Cook county in open court, at the May term of said court, against the appellants, in the sum of $6500
and costs. The confession was in virtue of a power of attorney attached to a note in the sum of $6000 executed by the appellants to the order of the Produce Exchange Bank of Chicago and by said bank endorsed to the appellee. At the June term, 1900, of the said superior court the appellants appeared in open court and filed their motion to set aside and vacate the judgment so entered against them at the preceding May term of said court, and to quash an execution which had been issued on said judgment and was then in the hands of the sheriff. It was alleged as a ground for the motion that the instrument which constituted the note and power of attorney combined, by virtue of which the confession was entered, had been materially altered and changed after its execution and delivery, without the knowledge and consent of appellants, whereby the liability of the appellants was intended to be and purported to be increased in the additional sum of $300. The respective parties presented a number of affidavits pro et con on the issues raised by the motion to vacate the judgment and quash the execution, and the original instrument and photographic copies and enlarged photographic copies thereof were also produced in evidence for the inspection of the court.
On the 30th day of June, 1900, the appellee, during the hearing in said superior court of the motion to vacate the judgment and quash the execution, entered a remittitur, remitting the sum of $300 from the judgment sougbt to be vacated. The motion to vacate the judgment and allow the appellants to plead to the declaration and quash the execution was argued by counsel and submitted to the court for decision. The court adjudged the motion should be overruled and denied. The appellants objected and excepted to such action of the court, and prayed an appeal to the Appellate Court for the First District. The prayer for an appeal was allowed on condition an appeal bond in the sum of $7000, with sureties to be approved by the court, should be filed within twenty days and a
bill of exceptions within sixty days. Within the period so allowed an appeal bond and a bill of exceptions embodying the evidence produced on the hearing of the motion were filed and approved. The record was removed into the Appellate Court for the First District, the transcript (including the appeal bond, and, by stipulation of the parties, the original bill of exceptions,) being filed in said Appellate Court on the 22d day of September, 1900. The appellants assigned as for error, among other alleged errors, that the court erred in refusing to vacate or open the judgment for defenses and overruling the motion to vacate such judgment and quash the execution issued thereon. The cause stood for hearing to the October term, 1900, of the said court. On the 8th day of January, 1901, being yet one of the judicial days of the said October term of said Appellate Court, the following order was entered in the cause in said court: "By stipulation of the parties herein, leave is granted to appellants to file their appeal bond herein, dated July 28, 1900, in substitution of the original appeal bond filed by appellants in the court below, which bond mis-recited the judgment, the bond now and hereby filed in this court to be filed nunc pro tunc of date September 22, A. D. 1900, and in all respects to stand as if the same had been originally filed herein in perfecting appellants’appeal to this court.” The cause was submitted for decision at a later day of said October term. On the 8th day of April, 1901, being one of the judicial days of the March term, 1901, of the said Appellate Court, the following order and judgment was entered in said Appellate Court: "On this day came again the parties, and the court having diligently examined and inspected as well the record and proceedings aforesaid as the matters and things therein assigned for error, and being now sufficiently advised of and concerning the premises, doth order that said appeal be dismissed; and it is further considered by the court that the said appellee recover of and from tbe said appellants his