Mexican Asphalt Paving Co. v. Love

Mr. Presiding Justice Adams delivered the opinion op the Court. The appellees and appellants in assumpsit. The declaration contains two special counts on promissory notes and the common counts. The appellants filed, jointly, seven pleas. The first plea is the general issue; the second alleges, in substance, that the notes described in the first and second counts of the declaration were obtained from appellant by the Norristown Range Boiler Works on the sole consideration that the Norris-town Range Boiler Works would, within six weeks from October 19, 1895, deliver to appellants a portable asphalt plant of a certain capacity (mentioned in plea) and a boiler and engine of sufficient capacity to run the plant, etc.; that the Norristown Range Boiler Works wholly failed to perform its agreement, of which plaintiffs had notice, whereupon consideration has wholly failed, etc. The third plea is a denial of joint liability verified; the fourth plea denies that plaintiffs at the time of bringing suit were the legal owners or holders of the notes; the fifth and sixth pleas are that the notes were given without consideration, and were assigned to the plaintiffs after maturity; the seventh is substantially the same as the fourth. Appellant Sayler filed three separate pleas denying the assignment of the notes by him to the plaintiffs, alleging failure of consideration for the notes, and also for their assignment to the plaintiffs, and their assignment to the plaintiffs after maturity. The case was tried by the court, without a jury. The facts, as they appear from the evidence, are as follows: October 30,1895, the appellant executed two promissory notes of that date, each payable three months afterdate, to the order of the Norristown Eange Boiler Works, at 1105, 1106, 1107 Marquette Building, Chicago, Illinois, with interest at the rate of six per cent per annum, one of the notes being for the sum of $1,469.55 and the other for the sum of $1,337.50. The notes were brought to appellant Sayler before their delivery to the payee by Mr. Crichfield, the president of the Mexican Asphalt Paving Company, and he, Sayler, indorsed them and handed them back to Mr. Crichfield. The notes are indorsed, “Norristown Eange Boiler Works, E. H. DeiSenbach, President,” and were delivered by the payee to appellees in November, 1895. S. Arthur Love, appellee, testified that the indorsement was to the Norristown Eange Boiler Works, and was made in his, Love’s, presence. At the time the notes were so indorsed to appellees there was due on them about $2,700 or $2,800, and the Norristown company was indebted to appellees in the sum of about $2,000, and appellees, in consideration of the transfer to them of the notes by the Norristown company, credited that company with the amount of its indebtedness to appellees and paid it in cash, the difference between such indebtedness and the amount due on the notes. The name of appellant Sayler was indorsed on the notes when they were delivered to appellees. The notes at maturity were presented for payment at the place where, by their terms, they were payable, and were protested for nonpayment. Appellants’ counsel in their argument object that the joint liability of the appellants was not proved; that- there is no evidence that appellant Sayler was a guarantor, or that the payee of the notes, the Norris-town Eange Boiler Works, indorsed them, and that the court erroneously excluded certain evidence offered by appellants. Appellant Sayler was a stranger to the notes; he indorsed them about the time of their execution by the maker, and before their delivery to the payee. The presumption is, therefore, in the absence of evidence to the contrary, that he indorsed as guarantor, and the consideration for the notes was also the consideration for the guaranty. Webster v. Cobb, 17 Ill. 459, 465; Parkhurst v. Vail, 73 Ill. 343; Eberhart v. Page, 89 Ill. 550; Kankakee Coal Co. v. Crane Bros. Mfg. Co., 138 Ib. 207. There is no evidence tending to prove that Sayler’s liability is other than that of guarantor. By virtue of Section 2 of the act of 1895, in respect to negotiable instruments, the maker and guarantor of a promissory note may be sued jointly. 2 S. & C. Stat., Ch. 98, Sec. 8. The Mexican Asphalt Paving Company by signing, and Sayler by indorsing notes payable to the order of the Norristown Eange Boiler Works, impliedly stated and held out to the commercial world that there was an association of that name capable not only of being the payee of a promissory note, but also of directing, by indorsements, its payment to a third person. S. Arthur Love, appellee, testified that appellees partners, under the firm name of John B. Love & Co., had had quite extensive dealings with the Norris-town Eange Boiler Works; that he purchased from that concern for his firm the notes in question, and that he was present when they were indorsed and saw the indorsement made, and received the notes from the Norristown Eange Boiler Works. Lastly the indorsement on the notes is, “Norristown Eange Boiler Works, E. H. Deiffenbach, President.” We think the evidence amply sufficient to warrant the jury in finding that the notes were indorsed by the payee. A number of questions were asked S. Arthur Love on cross-examination by appellants’ counsel, to which the court sustained objections. It is sufficient to say that the questions did not relate to the subject-matter of the examination in chief of the witness, and the objections were properly sustained. George W. Crichfield, President of the Mexican Asphalt Paving Co., a witness for appellants, was asked, “What were these notes given for?” On objection made to this question, one of the appellants’ attorneys stated, “My object in asking the question was this: The plaintiff stated that he gave them credit on their account for more than the value of one of the notes— about two thousand dollars—and I contend that the rule is that where credit is given on a prior debt, the note is subject to any defenses that you may have had against the payee.” By this statement appellants’' attorney impliedly abandoned the theory that the notes were assigned to appellees after maturity, because if they were so assigned, the fact that a part of the consideration for such assignment was an antecedent debt, was an immaterial circumstance. The theory of the attorney was, as stated by him, that if the consideration for the assignment was an antecedent debt, the assignees took subject to any defense which might be made by the maker had there been no assignment. This theory is erroneous (First Natl. Bank of Olney v. Beaird, 3 Ill. App. 239; Mix v. Natl. Bank of Bloomington, 91 Ill. 20; 1 Daniels on Negotiable Instruments, Sec. 184), and, therefore, the objection was properly sustained. There was no statement of what was expected to be proved by the witness, or offer to prove failure of consideration, and actual notice of such failure to appellees prior to the assignment of the notes, or that the notes were assigned after maturity (Gaffield v. Scott, 33 Ill. App. 317; Cook v. Haussen, 51 Ib. 269), but the court was informed, in substance, that the evidence was offered for the sole purpose stated by appellan ts’ attorney. Certain questions and answers in the depositions of Tallman and Holloway, witnesses for appellants, were excluded by the court, to all of which, except one question to Tallman and two' to Holloway objections were noted in the depositions. Having examined the excluded questions and answers, we are of opinion that they were not relevant to the issues, and were properly excluded. Ho propositions to be held as law in the case were submitted to the court. The judgment is affirmed.