Truesdell v. Hunter

C. B. Smith, J. This was an action of assumpsit on the following note: “$250. Elgih, Dec. 13, 1880. “On or before one year after date we, or either of us, promise to pay to the order of W. H. Truesdell $250, at the Home ¡National Bank of Elgin, value received, with interest at 8 per cent, per annum. “¡No. 531. Due Dec. 13, 1881. “ G. H. Shebmah, “Wm. F. Hunter.” Hunter alone was served and the case was tried as to him. The defendant first pleaded the general issue and one special jilea, setting uji that he signed the note as surety and that the payee had extended the time for payment one year to the principal debtor for a consideration without the knowledge or consent of this defendant, wherefore he was discharged, etc. After the pleadings were in this condition, defendant asked and obtained leave to withdraw the general issue for the purpose of obtaining the opening and closing before the jury. The cause then proceeded tó trial and Hunter was placed on the stand to prove his signature, and then he stated that he signed the note, but that the note had been altered since lie signed it, and that the words “ on or before” had been added and the words i'or either of us’’’’ had been interlined since he signed it. The defendant then asked and obtained leave to file another plea denying the execution of the note, and then filed the general issue sworn to against the objection of the plaintiff. The trial then proceeded resulting in a verdict for defendant. A motion for new trial was overruled and judgment rendered on the verdict against the plaintiff. The plaintiff brings the case here on appeal and asks for a reversal of the judgment and assigns the usual errors. The plaintiff complains of the action of the court in first allowing the general issue to be withdrawn and then allowing it to be again filed so as to put the signature and alleged alteration of the note in issue. In this there was no error. The order and time of pleading rests in the sound discretion of the court and is not subject to review by this court unless the court can see that the discretion has been improperly exercised to the prejudice of the partly complaining. Upon this issue made on the alteration of the note by the sworn plea of the defendant, we think the proof fails to show the alteration. The charge in the plea amounts to a charge of forgery and the burden is on the defendant to establish the. charge. The plaintiff positively denies it, and all the evidence in support of the plea is of a very uncertain and unsatisfactory character. But we think the changes charged to ■ have been made in the note are immaterial and presented no defense, even if they had been made. . The legal aspect of the note was not changed. The alleged changes gave the plaintiff no right he did not before have nor cast any additional burdens on the makers of the note. We think the defendant also failed to establish his defense made under his special plea which set up an extension of time. To make this defense availing and successful it is the settled law of this State that there must be a new, valid and binding contract between the payee and principal maker of the note (without the consent of' the surety), capable of legal enforcement. The time for which the extension is made must be a part of the agreement and fixed, and it must be upon a sufficient consideration. This was held in Gardner v. Watson, 13 Ill. 347. Counsel for appellee contend that this rule is re1 axed in Dodgson v. Henderson, 113 Ill. 360, but we do not think so. On the contrary, we think the facts in the case come fully within the rule laid down in Gardner v. Watson, supra. The time for which the extension was made was definitely fixed to a certain day named and the maker agreed to keep the money until that time and to pay the interest annually. The agreement to extend to a certain day on the one hand and the agreement to keep the money until that day by the other party, was a valid and binding agreement capable of enforcement by either party, and the agreement to pay the interest annually, which was not expressed in the note, was a sufficient consideration to support the mutual promises even if such consideration was needed to support the mutual promises. How, do. the facts established by the proof in the case at bar bring this case within the rule ? We think not. Upon appellee’s own testimony there is a clear failure to show that, even if the time was extended to a definite date, he had agreed on his part to keep the money or to do anything, in fact, except what the note already required him to do. But, even upon the point of fixing any day or time to which the extension was made, appellee’s own testimony is too indefinite and uncertain to establish that point in his favor. His statements are directly contradicted by appellant as to any definite time being fixed for the extension. The burden of proof was on appellee to support this plea upon all its material averments and we think he failed to do so. Appellant alleged error in the action of the court in refusing to strike appellee’s pleas from the files on his motion, for want of an affidavit of merits to his pleas. The declaration had the common counts and an affidavit of merits attached. "Under the statute the defendant had no right to file pleas without an affidavit of merits on his part. The affidavit attached to the general issue putting in issue the signature of the note was not such an affidavit of merits as the statute requires. The court sl:o dd have allowed appellant’s motion to strike these pleas from the files and in failing to do so there was error. For this error the judgment is reversed and the cause remanded. lieversed, and remanded.