Hammond v. Goodale

Lacey, J. This suit was brought by appellant against the appellee in assumpsit to recover on two drafts drawn by Hall & Co. payable to Thomas E. Hall and directed to appellee, for $500 each, dated July 3, 1889, one payable October 1st, after date, and the other February 1st, after date, purporting to be accepted by appellee in writing over the face thereof. There was a plea of non est factu/m sworn to by appellee as well as the 3d plea, which was a plea of fraud and circumvention on the part of Hall in obtaining appellee’s signature to the acceptances to the drafts, in that Hall, in pretending to get appellee’s signature to a pretended contract for the sale of Hall & Co.’s hydro-carbon burner attachment, water heaters and steam cookers, as the agent of Hall & Co. in Westerfield township in Henry county and in Stark county, Illinois, fraudulently substituted a paper other than the contract, to wit, the drafts and acceptances sued on, without the knowledge, consent, neglect or intention of appellee. The case went to trial before a jury on the issue and resulted in a verdict in favor of appellee, upon which verdict judgment was rendered against appellant for costs. There is no question but that the appellee’s name was procured by Thomas E. Hall to the acceptance by the basest deception and fraud, and that the contract which appellee supposed he was executing, was used as a mere blind to mislead and deceive him, the procuring the signatures to the acceptances being the object in view. The appellant became the purchaser of the drafts on the day of their date for $500. lie was the cashier of the bank at Wyoming, and upon their being presented to him by Hall and offered for sale, and after snaking some inquiries about the genuineness of appellee’s signature, purchased them. The appellant complains, as his counsel say, “chiefly” that the “court” allowed the case to go to trial before a jury, “upon such a footing as to try the question whether or not the appellee had been cheated by Thomas E. Hall in the agency transaction out of which the said agency originated, rather than the question whether they were procured by the fraud and circumvention set up in the plea.” We do not think the point is well taken. In the first place the testimony of appellee is, in which he is not contradicted by any one, that he did not knowingly sign any drafts or other obligation to pay money, and no such thing as that was even suggested. The court allowed appellee to state the conversation between himself and Hall in regard to the agency, the agreement, and the conversation and circumstances leading to it, and refused to confine the witness alone to what was said and done relating to the signing the papers in suit. We do not think the court erred in this. The jury had a right to have what was said and done just immediately prior to the signing of the papers for the purpose of throwing light on what was the real intention and agreement of the parties. It was important to know what was agreed on and intended, so that the jury might see whether appellee was simply overreached in the contract and signed the acceptances knowingly, or whether his signature was procured by fraud and circumvention. Besides it was all one transaction and a part of the res gestae. We sec no error in the ruling of the court in this particular. There is no complaint by the appellant as to the instructions, but it is admitted that they are correct. But it is urged that the evidence shows that appellee signed the papers in blank which he supposed to be intended to be filled up with an agreement concerning his commissions, and if that be the case, he was negligent to such a degree that he would be bound by whatever acceptances Hall might write if they came into the hands of the appellant an innocent purchaser. But the question of negligence in this State is one for the jury, and it is not a question of law, and besides we are unable to determine from the evidence whether appellee meant to say that Hall was intended to be allowed to carry away the blanks or not, if there wore any blanks, which is very doubtful. It rather appears from the fact that Hall pretended to read the supposed agreement for the commissions to appellee after he signed the supposed blanks, that he had already filled them up, or appellee so understood it. But from the way they were covered up by Hall when appellee signed them, and from the fact that if the acceptances were first signed by the appellee, it would be difficult to write the draft over the signature without its showing, the jury were justified In finding, and no doubt found, that the drafts were drawn before appellee’s name was written across the face of them. However these facts may be, they were all questions for the jury, involving no questions of law. It is insisted by counsel for appellee, that appellant can not be regarded as an innocent purchaser, for the reason that the notes were discounted fifty cents on the dollar, and from the fact that he could easily have found appellee and inquired of him about the notes and failed to do so; and other alleged suspicious circumstances which were sufficient to show bad faith on his pait. As to this point there is no question of law involved, and it was a question for the jury, the same as the other questions in the case, and we need not comment on it, as both points were covered by the verdict. Suffice it to say on the whole ease we think the jury were justified in finding as they did, and that the evidence sustains the verdict. The appellant is not allowed to raise the question of variance between the evidence and plea in this court for the first time. City of Elgin v. Kimball, 90 Ill. 356; I. & S. L. Ry. Co. v. Estes, 96 Ill. 473. The judgment is therefore affirmed. Judgment affirmed.