Dilley v. Van Wie

By the Oow't, Smith, J. We think the circuit Court did right in setting aside the judgment entered in this case. The instrument in writing on which judgment was rendered is not a promissory note. Its payment is made subject to a contingency, or rather to the equities between the parties growing out of a contemporaneous agreement between the same parties. This is expressed upon the face of the (so-called) note, and deprives it of its commercial character. Nor does the warrant of attorney help the matter, for the power to confess judgment is only for the amount due, and that must depend upon the equities before mentioned, which would require to be adjusted before the authority of the attorney to confess the judgment would be complete. See Story on Promissory Notes,- § 22, et. seq.,; Chit. on Bills, 134, 154; 5 D. & E., 482. [213] The assignee of the note took it with full knowledge of outstanding equities disclosed upon the face of the note, and is entitled to no protection. We are not disposed to extend the powers of attorneys, who act upon warrants of attorney, beyond their just limits. We are of the opinion that the circuit court was right in vacating the judgment, and that the order must be affirmed that the parties may have an opportunity of trying their respective claims upon their merits. Order of the court below is affirmed with costs.