First National Bank v. Hogg-Harris Lumber Co.

Mr. Presiding Justice Gridley delivered the opinion of the court. By statute of this state “the assignee and equitable and bona fide owner of any chose in action not negotiable heretofore or hereafter assigned may sue thereon in his own name, * * * hot in such suit, there shall be allowed all just set-offs, discounts and defenses not only against the plaintiff, but also against the assignor or assignors before notice of such assignment shall be given to the defendant.” Section 18, chap. 110, Hurd’s Ill. Stat. In this case the plaintiff, as assignee of certain choses in action against the defendant, of which assignment the defendant had notice, brought suit against the defendant, • and the plaintiff was entitled to recover to the same extent as its assignor could, and no right of set-off or other defenses could be maintained by the defendant as against the plaintiff, as assignee, which were not valid and subsisting as against the plaintiff’s assignor at the time defendant received notice of the assignment. Salt Fork Coal Co. v. Eldridge Coal Co., 170 Ill. App. 268, 273. If there were “just set-offs, discounts and defenses” subsisting at that time as against plaintiff’s assignor, the defendant was entitled to the benefit thereof. Inasmuch as we have reached the conclusion that the trial court erred in striking out practically all of the evidence introduced by the defendant as being immaterial to the issues and entering judgment in the amount mentioned, and that the judgment should be reversed and the cause remanded for a new trial, we refrain from a discussion of the evidence and of the many points argued by counsel. We are of the opinion that at least certain portions of defendant’s evidence, so stricken out, were material to the issues, and should have been considered by the court. We think, under the facts of this case that the evidence introduced by defendant tending to show certain general customs in the yellow pine lumber trade in the year 1909, as above mentioned in the statement of the case, was material to the issues and should have been considered by the court. We think that the rights of plaintiff, as assignee of the choses in action, would be affected by said customs to the same extent as would the rights of plaintiff’s assignor. In Guggenheim v. Hoffman, 128 Ill. App. 289, 291, it is said: “While usages of trade cannot be set up to contravene established rules of law, or to vary the terms of an express contract, yet all contracts made in the ordinary course of business without particular stipulations, express or implied, are presumed to be made in reference to any existing usage or custom, relating to such trade; and persons dealing therein will be held as intending that the business should be conducted according to such general usage and custom. Chisholm v. Beaman Mach. Co., 160 Ill. 101; Samuels v. Oliver, 130 Ill. 73; Lonorgan v. Stewart, 55 Ill. 44.” The judgment of the Municipal Court is reversed and the cause remanded. Reversed and remanded.