McNamara v. Clark

Mr. Justice Shepard delivered the opinion of the court. The payments made by appellant to Snowhook were made at her peril. Neither the note nor the trust deed were in the possession of Snowhook when she paid any part of the money here in controversy and, of course, were not produced to her at the time. She was expressly informed by the contents of the receipt and extension agreement given to her by Snowhook on October 21, 1889, which was before the note became due, that Clark, the appellee, held the note. With that knowledge by her, she certainly may not equitably claim the right to be protected against her own act in making payment to anybody except Clark or his authorized agent, without production of the note. The evidence fully justifies the finding by the master that Snowhook was not the agent of Clark to collect the principal of the note, and that appellant’s payment thereof to Snowhook was made at her own risk. The circumstances that appellant obtained the loan through Snowhook, that he was named as trustee in the trust deed, that the note was made payable at his office, and that interest had been paid to him, may furnish bases for barren intellectual inferences, but do very little more in aid of appellant. The mere fact that a note is made payable at a particular place does not relieve one who pays its amount at that place from being required to pay it over again if the note be not there. The cases of Stiger v. Bent, 111 Ill. 328, Keohane v. Smith, 97 Ill. 156, and Viskocil v. Doktor, 27 Ill. App. 232, may be referred to as disposing of the contentions of appellant in respect of the matters we have mentioned. It is contended by appellant that there was no legal assignment to appellee of the note secured by the trust deed. The note is payable to the order of Patrick McNamara. On the back of the note is indorsed, “Pay to the order of Thomas Clark. Patrick McNamara, per P. W. Snowhoolc.” There is no direct proof when- or by whom such indorsement was made. From the fact that four payments of semi-annual interest, from October 23, 1886, to October 23, 1888, are indorsed upon the note before the indorsement of the above purported assignment, and that eleven indorsements of semi-annual interest down to April 23,1894, follow after the indorsement of the purported assignment, it may be fairly inferred that the assignment to Clark took place upon or after October 23, 1888, and on or before April 23, 1889, which is the date of the first indorsement of interest following the purported assignment. To make it plainer, perhaps, the indorsement of the assignment, as it appears on the back of the note, occurs between the indorsements of the payments of interest to October 23, 1888, and to April 23, 1889. Appellant did not in her answer specifically deny the assignment of the note to appellee, although she did deny that he “ is the holder and owner of any note made and executed by her.” It was proven that at the time appellee purchased the note and trust deed of Snowhook, they were delivered to him, and that he ever afterward kept them in his possession, only taking the note to Snowhook whenever he went to collect the interest, but never leaving it with him. We need not discuss whether the legal title of the note passed by the indorsement or not. Such indorsement, taken together with the delivery of the note and trust deed, and the payment therefor by appellee at the time, and his subsequent continued possession of them, amounted most clearly to an equitable assignment thereof to him, and entitled him to maintain his bill to foreclose. Nor was he required to prove either the execution of the note or its assignment to him, in the absence of any issue concerning the same being properly presented by appellant. Nor need we discuss at length whether or not, under the circumstances, the note was subject to any equitable der fenses in favor of the appellant, either as against appellee or the original payer of the note. The appellant does not claim any equities against the note prior to the time she paid three hundred dollars to Snowhook, on October 21, 1889, to apply on the principal sum, and at that time not only was the note not held or produced by Snowhook, but she was informed by the receipt and extension agreement then given her, that Clark, the appellant, was the holder of the note. So, the real question comes back to that already disposed of, as to whether or not she made the payments on that day and subsequently, to Snowhook, at her own risk. Some contention is made that Snowhook was the agent of the appellee, but the evidence is conclusive that he was not such agent for collection of the principal, and it is only as to payments on the principal of the note that controversy exists. It is claimed by appellant that McNamara was a necessary party to the bill. The evidence showed, without contradiction, that after two or three payments of interest were made, McNamara desired to leave Chicago and wanted the money he had put into the loan, and that Snowhook bought the note and trust deed from him—paying therefor the principal and accrued interest—and received from him the papefs, and afterward sold the same to appellee. We see no necessity for McNamara being made a party. Wilson v. Spring, 64 Ill. 14. There are some minor matters urged by appellant which do not require particular comment; Upon the whole record we discover no material error, and the decree of the Superior Court is affirmed.