Murchie v. Peck Bros. & Co.

Mr. Presiding Justice Waterman delivered the opinion of the Court. The note produced upon the trial was like the copy filed with the declaration, and not being payable to the order of Peter Gow by the name of “ ninety days after date ” did not correspond to that described in the special count. Being offered under the common counts, the signature of George L. Murchie thereto was proven, and there was judgment for $2,052.83. It is insisted by appellant 'that the note was not admissible under the special count because of its variance from the one described in the declaration, and that the signature of Janet L. Murchie not having been proven, no judgment against her was authorized. Section 33 of chapter 110 of the ¡Revised Statutes provides that “ no person shall be permitted to deny on trial the execution or assignment of any instrument in writing upon which any action may have been brought or is admissible under the pleadings, when a copy is filed, unless the person so denying *he same shall, if defendant, verify his plea by affidavit.” The plea of non-assumpsit filed by the defendants not being verified, did not put in issue the execution or assignment of the note. Vance v. Funk, 2 Scam. 263; Stevenson v. Farnsworth, 2 Gil. 715; Warren v. Chambers, 12 Ill. 124. If such plea had been verified by him it would, as a denial of the execution and assignment of the note, have been applicable only to the defendant by whom it was verified. Davis v. Scarritt, 17 Ill. 202; Zuel v. Bowen, 78 Ill. 234. Appellants, upon the trial, offered to prove that the note was not to be paid until Mr. Murchie had sold his building on Western avenue. We think that this was no more than an offer to prove a parol agreement inconsistent with the note; see Magey v. Hutchinson, 2 Gil. 266, and Harlow v. Boswell, 15 Ill. 56; but even if, as counsel contend, to be considered as an offer to show a written agreement to that effect, there was no offer to show that the plaintiff did not give value for the note or that it had any notice, before purchasing, of such agreement in contradiction of the terms of the note. The note was properly admitted under the common counts. Gilmore v. Howland, 26 Ill. 200. The judgment of the Superior Court is affirmed.