Bevan v. Fitzsimmons

Pleasants, J. Assumpsit on a promissory note for $400, dated November 1, 1887, payable to S. A. Foley, and purporting to be signed by O. E. Pratt and Mrs. Williams, the decedent of plaintiff in error. Verdict and judgment for plaintiff. The case is substantially like that of this plaintiff in error v. The Atlanta National Bank, 39 Ill. App. 577, and involves no other question except that of the competency of S. A. Foley as a witness called by the plaintiff. He was the payee named in the note, and assigned it to Abigail Eiley, defendant in error’s testatrix. He testified that the executrix had released him “ as indorser,” but the release was not produced nor its terms otherwise shown. On the objection made to his competency, the distinction between the special and technical liability of an indorser or of an assignor under the statute, and that arising on an implied guaranty of the validity of the note according to its tenor and- effect, as vendor, was expressly made and urged upon the attention of the court; and it held that the release operated to make the assignment a mere transfer of the assignor’s legal interest in the instrument, genuine or forged, and extinguished all his liability as vendor. Aside from the question of authority of the executrix to release him, either as vendor or assignor, we think this ruling was erroneous. The cases of Lunt v. Wrenn, 113 Ill. 175-7, Drennan v. Bunn, 124 Ill. 183; and the authorities there cited, show a clear distinction between the liability of an indorser or assignor and that of a vendor. One arises from the particular contract of assignment, by which the assignor becomes a party to the note, sub modo, and the other, whether regarded as from a breach of an implied warranty of genuineness or from failure to perform a condition of the sale, from a different origin. The conditions on which they arise and their extent, respectively, may also be very different. An assignment “ without recourse,” which fully transfers the title and interest but imposes no liability as assignor, still leaves him liable as vendor. It is the transfer for a valuable consideration, of something as really what it purports or was to be, alone, that raises the liability of the vendor where it is not such. That foundation is not removed or affected by releasing him as indorser or as assignor under the statute. Bank v. Smiley, 27 Maine, 255; Challiss v. McCrums, 22 Kansas, 157, and cases above cited. Whether the note in suit was a forgery as to Mrs. Williams, was the controlling question in the case. The evidence was conflicting, and the decision was to depend upon the preponderance. Foley was a very material and important witness. He was directly interested in the event of the suit. That fact disqualified him. How far the weight of his testimony contributed to make what the jury considered a preponderance, it is impossible for us as for the court below to know. His' admission as a witness was, therefore, a material error, for which the judgment will be reversed and the cause remanded. Reversed and remanded.