Farmers Trust Co. v. Schenuit

Mr. Presiding Justice Freeman delivered the opinion of the court. Appellant first contends that the note should not have been admitted in evidence, without production also of the mortgage. It must be borne in mind that this suit is not against the maker of the note and mortgage, nor is it sought to recover under the terms and conditions of either. It is a suit upon the contract made subsequently. Whatever the terms and conditions of the mortgage may be, the appellant undertook, by its contract of guaranty, to collect at its own expense and pay over the principal of the note in the event of default. If appellant desired the production of the mortgage upon the ground that it may- have contained provisions contradicting the note as to time or place of payment, it could have obtained and offered it in defense upon proper notice. The note is complete in itself, and no such defense was set up by plea nor by offer of proof. Appellant urges that as the note is by its terms to be construed under the laws of the State of Nebraska, it was necessary for the plaintiff to aver and prove that it was assignable under the laws of that State. The assignability of a note is not a question of construction of the instrument itself, and we do not understand the provision referred to as applicable to the assignability or negotiability of the note. The note is by its terms made payable in this State. The contract was to be performed here, and it must be presumed that upon a question of this character the parties contracted with reference to the law of this State. Abt v. American Trust and Sav. Bank, 159 Ill. 467. If by the laxvs of Nebraska the note was not assignable •or negotiable, the appellant, if it desired to avail itself of such a defense, was bound to so plead and prove. ’\V hen a foreign law is relied upon either for recovery or defense, the law must be pleaded and proved. Chumasero v. Gilbert, 24 Ill. 293. It was not relied upon in this case for recovery, and it was not necessary to set it up in the declaration. If we assume, for the sake of the argument, that such may be the law of Nebraska, and that the defense would- be available, then it was the duty of appellant to plead the statute relied upon. Where a party sues upon a note which he holds as an assignee under an assignment which, neither by the pleading nor the proof, is shown to have been made in a foreign State, we will not presume that it was so made, and that by the laws of such State the note is not negotiable or assignable merely because the note itself is by its terms to be construed according to the laws of such foreign State. Our courts will presume that the assignment was made in. conformity to the law of the place of its execution, wherever that may have been, and will hold, in the absence of a plea and proof to the contrary, that the defendant admits the legality of the assignment. Smith v. Whitaker, 23 111. 367. It is said that the assignment and guaranty attached to the note, and upon the same sheet of paper, are not sufficient to vest the legal title in the appellee. The contention is that as the guaranty is not on the back of the note, it is not an indorsement, and is therefore a separate instrument, and as such is not assignable. The assignment and guaranty in this case are not upon a paper separate from the note. They are upon the same paper. Appellant, by such writing, “ assigns this note to -or order,” with the guaranties which follow. The intention to transfer the note by this assignment upon the note itself is perfectly clear and is unquestioned. It must be given effect according to such intent. In Herring v. Woodhull, 29 Ill. 92, the indorsement was on the face of the note. The court, by Justice Breese, says : “ Literally, indorsement, means a writing—indorse—upon the back of the bill or note. But it is well established that though such is its import, it may be made on the face of the bill, and numerous indorsements may be made on a separate paper called an allonge. And any form is sufficient which manifests an intention to transfer the note.” See cases cited. In Crosby v. Roub, 16 Wis. 645, it was held that a bond written on a separate paper, but attached to the note, was fully sufficient to pass the legal title within the law merchant; and that there is not any inflexible rule of the mercantile law requiring the indorsement to be on the identical paper on which the note was originally written. In the case before us, however, the appellant transferred the note by an assignment and guaranty of collection and payment upon the identical paper containing the note, and there can be no room for doubt that thereby the title passed to the legal holder. The statute provides that such note “shall be assignable by indorsement thereon, so as absolutely to transfer and vest the property thereof in each and every assignee successively.” Rev. Stat., Chap. 98, Sec. 4. We regard the statute as substantially complied with by this . indorsement, and hold that it is not a separate instrument. The indorsement is, so far as the name of the payee is concerned, in blank. The legal effect, therefore, was “ to make the note payable to the person to whom it is delivered, and any subsequent holder.” Fairbanks v. Campbell, 53 Ill. App. 219. It is said in Webster v. Cobb, 17 Ill. 549 : “ The guaranty is general, specifying no person to whom the guarantor undertakes to be liable, and is upon the back of a negotiable instrument. In such case the guaranty runs with the instrument on which it is written and to which it refers, partakes of its quality of negotiability, and any person having the legal interest in the principal instrument, takes in like manner the incident, and may sue upon the guaranty. This view is consistent with the nature of the transaction, the evident intention'of the parties, and the objects and uses of commercial paper.” To the same effect is Ellsworth v. Harmon, 101 Ill. 274. It is urged that the note was improperly admitted in evidence, because appellant did not show written notice to appellee within twenty days after the transfer to him, and that hence he can not maintain suit on the guaranty in his own name. The evidence tends to show that appellee received the note from a banking house of one Haerther, but whether the latter received the note from appellant originally, or in what capacity, whether as purchaser for value or as agent of appellant to dispose of it, does not appear. For aught that appears, appellee may have received the paper direct from appellant through its agent. The interest coupons, however, were presented to appellant, some of them, at least, by appellee in person, and the secretary of appellant, testifies that the company did have notice of appellee’s claim to the paper. The latter testifies that appellant paid interest to him “ seven times, beginning in 1891.” The payment of these interest coupons was specially guaranteed in the first clause of the guaranty. Having actual notice of appellee’s interest, and comptying with the terms of the guaranty by paying the coupons during all that time without objection, appellant must be held to have waived any right to now object upon the sole ground that such notice was not in writing, nor given within twenty days. The objection that appellee did not deliver the note to •appellant for collection, is not, we think, well taken. Appellant guaranteed to collect at its own expense. If it had undertaken in good faith to do so, and appellee had then interposed unnecessary obstacles, or prevented collection by withholding the note and mortgage, a different case would have been presented. Other objections are urged, but we find no error in the judgment of the Circuit Court, and it will be affirmed.