33 Ill. App. 618 | Ill. App. Ct. | 1889
Lead Opinion
The record in this case is very large and the briefs very elaborate, covering in argument a number of intricate questions, but we regard the case as turning upon a very simple point and shall therefore confine our attention to that. The action was assumpsit upon the following letter:
“Chicago. Nov. 20, 1884.
F. E. Stevens, Esq., Pres’t Beadle Co. Nat. B’k, Huron, D. T.
Dear Sir:—The hearer, Mr. M. F. Moss, may have occasion to call upon you for assistance during his stay at Huron. Any favor you may be pleased to extend to him you may hold us responsible for, or should he wish to draw upon us for money, we will honor his draft upon presentation.
Tours very respectfully,
S. Hyman & Co.”
At the time the letter was written the bank and S. Hyman & Co. were severally creditors of the firm of L. Adler & Co. of Huron, Dakota, which was then insolvent. There is a dispute whether Moss went to Huron as the representative of Hyman & Co. in the matter of their claim, and as to the time of the presentation of their letter, and what was said on that occasion, but. it is not denied that the bank sold to Moss its claim against L. Adler & Co., and as payment therefor received his promissory note dated November 28, 1884, for §>2,731.48, payable December 11,1884, with interest at twelve per cent per annum after maturity. On the back of the note was this indorsement: “If an extension of thirty days is desired it may be had.” It appears from the evidence that an extension of thirty days was given for the payment of the note.
The plaintiff claims to have had possession of the letter sued on at the time of the execution of the note, but defendants deny it. But plaintiff says, even if the evidence fails to show its possession of the letter when the note was executed, it certainly had possession thereof when the extension was granted, and so the defendants are liable as guarantors. We think it makes no difference when the letter was handed to the bank. It does not contemplate such a transaction as the selling of a bad debt by the bank to Moss. There was nothing in the relations between the plaintiff and defendant in the terms of the letter, or in the surrounding facts, which authorized such a conclusion.
We have examined the record carefully to ascertain whether there was anything in the evidence to warrant the construction given to the letter by the bank, and we are clearly of opinion there is nothing of the kind.
The judgment is affirmed.
Affirmed.
Rehearing
Upon Petition for Rehearing.
On the trial the deposition of Stevens, the cashier of the plaintiff, was read in evidence. He testified that the letter of credit was delivered to him by Moss as security for the note Moss made to the bank. Moss and another witness testified that the letter of credit was not delivered until three days afterward, and then only as security for a wholly independent accommodation. On this state of the evidence the finding of the court, without a jury, in favor of the defendant, could not be disturbed, nor, if the testimony of the witnesses for the defendant is true, could the letter of credit be held by the bank as security for the note upon the ground that while it was in the possession of the bank an extension of the time of payment of the note was agreed upon, nor can the bank claim a new trial on the ground of sur-prise. It may not speculate upon the chance of a finding in its favor on the evidence as it stood, and, when disappointed, ask an opportunity to supply the further evidence it knew it needed on the first trial, and which it did not then ask the court to give, as the court might well have done—time to procure. A rehearing of the case would be useless to the appellants.
This court preferred, in its former opinion, to put the case upon a point which might possibly make the opinion of some future use upon the construction of a written instrument.
Whether a declaration states a case upon which a recovery can be had or not is always an original question in a court of review, without regard to demurrers and motions in arrest below, if presented by the assignment of errors. Stearns v. Cope, 109 Ill. 340; Teal v. Walker, 111 U. S. 242.
In Chicago v. Turner, 80 Ill. 419, it is within the personal knowledge of one member of this court, though the report does not show the fact, that a demurrer to the declaration had been overruled, and yet because it showed no cause of action the court erred in giving and refusing instructions. The statute makes the sufficiency of any court in a declaration a j question that may be raised on the trial. Practice Act, Sec. 50; Frink v. Schroyer, 18 Ill. 416. It hardly needs to be stated that a court trying a cause without a jury should act upon principles which it would direct a jury to follow.
Rehearing denied.
