Smentek v. Cornhauser

McAllister, J. The instrument in writing, involved in this case, was not set out or described in either count of the declaration. And, unless it was admissible in evidence under the common money counts, it was not admissible at all. It was not so admissible, unless it was a promissory note. But, it not being an unconditional promise to pay a specified sum of money, it was not a promissory note. Myers v. Phillips, 72 Ill. 460. The action not having been brought upon said instrument in writing, and it not being admissible under any of the counts of the declaration, § 33 of the Practice Act, requiring an affidavit denying the execution of an instrument in writing in the cases therein mentioned, has no application to this case. The instruction, by the court to the jury, to the effect that the defendants were not permitted to deny the execution of the instrument in question, was therefore erroneous. Such instrument not being a promissory note, so as to import a consideration, and none appearing on the face of it, because it does not say for value received, or imply value received, so far as the sureties are concerned, it will be necessary for plaintiff, in order to be in a condition to recover upon it, to declare specially upon it, averring performance of the condition therein expressed, and a legally sufficient consideration. Wells v. Girling, 8 Taunt. 737; Butler v. Rawson, 1 Denio, 105. Appellee’s counsel assumes that the law will not permit the defendants to show that they were illiterate or unable to read English, and that Jankowsky presented said paper to them and stated it to be a mere recommendation of himself for a situation, and that they signed it as such, unless the plaintiff participated in the act of obtaining it by fraud and circumvention. And the counsel seems to think, that the defense is founded upon the statute in respect to setting up fraud and circumvention in actions upon negotiable instruments. The right of defendants to contest the execution of this instrument is in no respect founded upon that statute, but arises from very old principles of the common law ; one of which is that an act of the mind, an assent, is indispensable to the making of a valid express contract. In modern times, such assent to a contract in writing is usually manifested by signing; as a general rule if the mind does not accompany the act of signing, by reason of the misreading or misstatement of the effect of the instrument, and the party, without negligence, signs one instrument, when he supposes, from the circumstances of such misreading or misstatement of the contents and effect, that he is signing one of a different nature, he will not be bound; and it will make no difference whether such misreading or misstatement of contents and effect was by the party who seeks to enforce the obligation, or by a stranger. In Thoroughgood’s case, 2 Coke, 9, trespass was brought by Thoroughgood against Cole for breaking plaintiff’s close. The defendant pleaded that long before the trespass, the plaintiff released to one William Chicken, all demands, etc., whatsoever, whose estate defendant had, and justified the trespass. The plaintiff replied that he was a layman, not lettered, and that, at the time of the said release made, divers arrearages of an annuity were due him by said William Chicken, and that the said writing of release was read and declared to him as a writing of acquittance for those arrearages only; and that he, giving credit thereunto, did seal and deliver the same to said William Chicken, and so not his deed. The jury found a special verdict, that plaintiff was a layman, not lettered, and that divers arrearages of the said annuity were behind, and that the writing was never read to plaintiff; but after that one Thomas Ward had begun to read it to the plaintiff, and before he had read a line of the writing, one John Ward took the writing out of his hands, saying to the plaintiff : “ Goodman Thoroughgood, you are a man unlearned, and I will declare it unto you and make yon understand it better than you can by hearing it read.” And then said further to him: “ Goodman Thoroughgood, the effect of it is that you do release to William Chicken all the arrearages of rent that he doth owe you, and no otherwise and then you shall have your land again.” To which plaintiff said: “ If it be no otherwise, I am content;” and thereupon the plaintiff, giving credit to said John Ward, delivered said release to said William Chicken; and whether this, upon the whole matter, be the plaintiff’s deed, the jury refer to the court. The court adjudged that it was not the plaintiff’s - deed, resolving first, that although the party to whom the writing is made, or other by his procurement, doth not read the writing, but a stranger of his own head read it in other words than in truth it is, yet it shall not bind the party who deliveretli it; for it is not material who readeth the writing so as he who maketh it be a layman and being not lettered (without covin in himself) be deceived. * "x" Thirdly, although the writing be not read to the party, yet if the effect be declared to him in other form than is contained in the writing, and upon that he deliver it, he shall avoid the deed. We are not aware of the doctrine of this case being overruled, as applied to instruments other than negotiable paper-They may be said to have been modified to the extent that the party having executed and seeking to avoid the deed must exercise due care. Tliorougligood’s case was expiressly recognized as law in Foster v. McKinnon, 38 Law Journal Rep. 310, decided by the English Common Pleas in 1869; R. R. I. & St. L. R. R. Co. v. Shumick, 65 Ill. 229; Strong v. Linington, 8 Bradwell, 436; Id. 463. For the error in the instruction to the jury, the judgment must be reversed and the cause remanded. Judgment reversed.