Van Buskirk v. Day

Mr. Justice Breese delivered the opinion of the Court: This suit was originally commenced before a justice of the peace of Peoria county, to recover a balance claimed to be due on the following note: $200. Peoria, JVov. 11, 1859. For value received, I promise to pay to the order of Lewis Howell, president of the board of trustees of loan to the American Pottery Company, two hundred dollars, payable at the banking house of S. Pulsifer & Co., in Peoria, in installments. First installment 10 per cent., at date; second installment 5 per cent., on the first day of December, 1859, and the balance in installments of five per cent., on the' first day of each month thereafter, until paid. L. YAH BUSXIBK. The note was indorsed as follows: I assign this to Day, Bros. & Co., without recourse to me. L. Howell, prest, of board of trustees. There was a credit indorsed of seventy dollars. A judgment was rendered for the plaintiffs, from which -the defendant appealed to the Circuit Court, where, on a trial before a jury, a verdict was rendered for the' plaintiffs for one hundred and forty one T°TSV dollars, and judgment accordingly. The case is brought here by the defendant, by appeal. The principal point raised is upon the fourth instruction given for the plaintiffs: That instruction is as follows: If the jury believe, from the evidence, that the note sued on was given in pursuance of a subscription theretofore made, to loan $200 to the American Pottery Company, or to a board of trustees of such loan, for the use of said company, and that said subscription was made upon and under a written contract between certain parties, as commissioners for organizing said company, and the subscribers to such loan, of whom defendant was one, which contract purports to set forth the terms and conditions of, and inducements to, and consideration for such loan, such written contract is the sole and exclusive evidence of what said .terms, conditions, consideration and inducements were, and no evidence of cotemporaneous statements or representations made to induce defendant to become a subscriber to such loan, is to be taken into consideration by the jury in making up their verdict. It is objected by the appellant that, inasmuch as the issue before the court was fraud, the defendant was at liberty to go outside of the written contract, and show all the circumstances attending the transaction, and therefore it was error to inform the jury that the written contract furnished all the evidence for this consideration. There is force in this, and so the Circuit Court thought, for, at the instance of the defendant, the tenth instruction was given expressly for the purpose, as stated on the margin, of modifying the fourth instruction. The tenth instruction asked by the defendant is as follows : The jury are instructed that it is true that all prior and contemporaneous conversations are merged in the contract, yet the jury may examine into such prior and contemporaneous conversations and representations for the purpose of ascertaining whether the contract was procured through fraud and false representations. And if they find from the evidence, that the contract was so obtained, the contract would be void. Whatever error then may have been in the fourth instruction as given, it was corrected by the tenth, and no injury could have resulted to the defendant. Indeed the two in themselves are to be considered together, and when so considered are correct. It is very questionable if the defense here set up was legitimate. The false representations should be brought home to the parties to the note. What statements the canvassers for subscriptions may have made to induce the defendant to execute this note, unless prompted or authorized by the trustees or the payee of the note, was not proper evidence to the jury to defeat a recovery on the note. As to the suggestion, the note was assigned after maturity, and therefore open to any defense that may have existed to it while in the hands of the original payee, it is sufficient to say, the note was transferred on its execution, to the plaintiffs, who made advances on the credit of it, to the workmen engaged in carrying on the enterprise in which the defendant had embarked, and had in that way paid value for the note and became the owners thereof. They were the equitable assignees of the note before its maturity, and ought not to be affected by any equities existing between the original parties to the note. But if it was assigned after maturity no defense has been shown to the recovery. It is objected by the appellant, that the noté in question is not a promissory note, and therefore not assignable. He insists it is a promise merely to loan money. The writing has all the essentials of a promissory note. It has a payor and payee, promises to pay a certain sum of money at a certain time, in certain installments. It is made „ payable to the order of Lewis Howell, describing him as “ president of the board of trustees,” of loan to the American Pottery Company. Howell is the payee and had the legal title to the note, and consequently could legally assign it. The jury by their verdict have negatived all idea of fraud in the transaction, and that the contract made by the commissioners with the appellant has been substantially complied with, and we see no ground to question the correctness of their finding. The appellees are meritorious parties, having paid value on the appellant’s promise that he would pay the note according to its terms. There being no fraud or false representations established against the payees of this note, or against any person or party in privity with them, the judgment must be affirmed. Judgment affirmed.