Studebaker Bros. Mfg. Co. v. Hinsey

Mr. Justice Windes delivered the opinion of the court. What was said in our former opinion as to the law governing appellee’s liability as to the guaranties sued on, is sufficient and need not be here repeated. The only difference in the evidence on the second hearing is as above stated. The fact that Mr. Forrest was attorney for appellee in certain litigation between him and appellant, would not justify Forrest in writing, as was testified he said he did, the guaranties in question over the blank indorsements of appellee’s name on the notes which had been made long prior thereto and in the hands of appellant, without authority from appellee. In that regard we think it can not be presumed that Mr. Forrest had such authority. Iso adjudication to that effect is cited. If he had such authority, either he or the appellee might have been called to establish it.- The case is very different when a note is indorsed by the payee from that where the indorsement is by a third person not a party to the instrument, in which latter case the presumption is that the contract is a guaranty. As to the liability by reason of appellee’s indorsements, under the indorsement counts, the evidence in this record is quite different from what it was on the former hearing. On the former hearing there was no proof before this court as to when or where the notes were indorsed, nor as to when or where they were delivered to appellant, and we can not presume, m the absence of proof to that effect, the notes being made and payable in a foreign State, that the indorsements were made in Illinois and prior to July 1, 1895. The presumption would be, if we could presume, that the indorsement was in Missouri. That being the State of the proof before this court, the law as held on that hearing, viz., that plaintiff’s remedy was under the-law of this State which was in force when the suit was commenced, was correct. In any event, under that proof the law of Missouri would control. There was no proof of the Missouri law, and it would follow that the common law prevailed which led to the same result. Dunnigan v. Stevens, 122 Ill. 402. “ The law of the place of making and that of indorsing will govern the contract and fix the liability of the several parties.” Bond v. Bragg, 17 Ill. 70; Barber v. Bell, 77 Ill. 490; Duerson v. Alsop, 27 Gratt. 229-37; Cook v. Googins, 126 Mass. 410; Musson v. Lake, 4 How. (U. S.) 262-78; Dunnigan v. Stevens, 122 Ill. 402; Evans v. Anderson, 78 Ill. 558. This being the law, and the contracts of indorsement having been made as early as April 22, 1893, at Chicago, in Illinois, the act in this State in force July 1, 1895, making promissory notes payable in money subject to the law governing the custom of merchants, had no application to such contracts, but they were governed by the law of Illinois as it was on April 22, 1893. Under the law as it then existed, the plaintiff was not bound to aver and prove notice to the indorser (Barber and Dunnigan cases, supra), and it was therefore error for the trial court to hold, as it did, that under the evidence in this case and the law as held by us in the same case (73 Ill. App. 278), the finding must be for the defendant. The case was reversed and remanded for a new trial, and the evidence, on that trial being different, our decision was not binding upon the trial judge. It was not the law of the case under the new facts presented upon the second trial. Chickering v. Fails, 29 Ill. 302; West v. Douglas, 145 Ill. 166; Chicago, etc., R. R. Co. v. Kelly, 182 Ill. 267; Mfg. Co. v. Wire Fence Co., 119 Ill. 46. As we have seen, the evidence shows that the maker of the note was a Missouri corporation, and being a Missouri corporation it was therefore a non-resident of Illinois at the maturity of the notes sued on, and under the terms of our statute, the maker of the notes being a non-resident when they became due, the plaintiff was excused from showing any diligence in attempting to collect from the plaintiff. Mineral Point R. R. Co. v. Keep, 22 Ill. 9-18; Schuttler v. Piatt, 12 Ill. 417; Hannibal, etc., R. R. Co. v. Crane, 102 Ill. 249-54; Wabash R. R. Co. v. Dugan, 142 Ill. 254; Waples on Attcht., Sec. 459; 2 Cook on Corpns., Sec. 757; 2 Morawitz on Corpns., Secs. 975 and 999; Plimpton v. Bigelow, 93 N. Y. 598. The allegation of the indorsement counts is that when the notes became due the carriage company was, and ever since has been, a resident of Missouri and not a resident of Illinois. The evidence and admissions in the record sustain the allegation, and appellant was excused from showing more in order to show the liability of appellee. Barber v. Bell, 77 Ill. 490. The admission made in the course of the trial that the carriage company was, at the time of the commencement of the suit, a corporation, and had its principal office in the State of Missouri and had no office or residence in this State, was unimportant. The non-residence of the carriage company at the time of the maturity of the notes was established by other evidence. The contention of appellee that because appéllant only took a general exception to both the propositions of law, it can not avail of such exception if one of the própositions of law is correct, even if sound, will not result in the affirmance of the judgment, because' the question of the sufficiency of the evidence to support the finding and judgment of the court is presented by the exceptions of appellant thereto. For the errors of the court in holding the second proposition of law offered by the defendant, and in entering judgment against the appellant, the judgment is reversed and the cause remauded.