39 Ill. 31 | Ill. | 1865
delivered the opinion of the Court:
It is insisted, that the instrument read ifi evidence is not a promissory note, and consequently was not assignable, and was therefore inadmissible in evidence to fix the amount of the recovery. It fails to state in the body of the instrument whether it is for five hundred dollars, or for that number of commodities. The check mark, however, in the margin is for “ $500,” but in the body it is written “ five hundred ” without the addition of the word dollars, or other .articles. The check mark being placed in the margin by the parties themselves, at the time the instrument is made, becomes a part of it; and being a part of the note, it may be resorted to as a means of explaining any thing doubtful in reference to the sum named in the body of the note. Whilst it cannot be used to contradict what is clearly and plainly written, still, if from any cause there is uncertainty as to the sum intended, it may be resorted to for the purpose of explaining or removing that doubt. Riley v. Dickens, 19 Ill. 29. The check mark, then, in this case showed that the sum intended in the body of this note was five hundred dollars.
Again, the maker, in this case, confessed a judgment, in favor of plaintiff below, for five hundred dollars and interest. It thus appears that such was the real amount of the note, and that appellee so understood it at the time. It appears that the maker understood that as the sum, and appellee so received the judgment without objection; and the check mark so fixed the sum, and we can see no reason to reject it as the true amount, or to hold, that it was not assignable as a promissory note. And being a note, it was properly admitted to fix the amount for which appellant, if at all, was liable on his assignment. There was therefore no error in permitting the note and indorsement to be read in evidence.
As between the assignor and the assignee, for all purposes except to impeach the validity of the note, or to prove its payment, we can see no sufficient reason why the maker is not a competent witness. His interest as between them is equally balanced. If his evidence fixed the liability of the assignor, he becomes liable to him for the payment of the note, whilst if it exonerates the assignor he remains liable to the assignee for its payment; and his liability would be as great to the one as to the other, and is therefore equally balanced. Hence there was no error in permitting the maker of the note in this case to testify.
Where appellee averred the insolvency of the maker, and that a suit against him would have been unavailing, it devolved upon him to prove the fact as averred. And we are of the opinion that it was competent to prove the fact by the maker of the note. And in proving the fact we see no objection to asking him whether he was the owner of real estate as well as personal property.
It is also insisted that appellee’s first instruction stated the law incorrectly, and was calculated to mislead the jury in finding their verdict. A witness is usually impeached by proving by other witnesses, that his character for truth and veracity among his neighbors is so bad that he is unworthy of belief. Such is generally understood to be the mode of impeaching a witness. Yet a witness, from his relationship to the parties, his manner and appearance on the stand, his evident bias'in favor of one of the parties, might warrant the jury in the conclusion that he was unworthy of belief. This instruction, unless it asserts that a witness may be impeached by these different means, would not announce a correct rule of law. And we think, that unless qualified, the jury would understand that it required an impeachment by the evidence of bad character, and it would have been better to have been modified before it was given, by informing them how a witness may be impeached; still it was in the power of the other party to have removed the objection by asking a properly drawn instruction.
Appellee’s third instruction was incorrect, in failing to inform the jury what is required, as between the purchaser of personal property and an execution creditor, to constitute a bona, fide sale. As between the parties, a delivery is not essential to a complete sale and the passing of the title, where nothing, by the agreement of the parties, remains to be done but for the purchaser to take possession. But as to creditors and subsequent bona, fide purchasers, the rule is different, as a delivery is indispensable to complete the sale. Before appellee could recover of appellant, on the assignment, he was bound to prove that the maker of the note had no property subject to sale on execution after he could have obtained a judgment. In this case it was insisted, and it was a question for the jury to determine, that in the sales of personal property to which Woods testified the possession was never delivered to the purchaser, and yet this instruction fails to inform the jury that a delivery of possession was necessary. This was, however, obviated by the instructions given for appellant, which state the law correctly.
The instruction, however, asserts that any sale is presumed to have been made in good faith, and it devolved upon the party denying its validity to show bad faith. This may be true where all the requirements of a valid sale seem to have been observed, but is not where, in proving what is claimed to be a sale, some essential requirement is wanting. A sale of property, we have seen, without a delivery of possession, is valid as between the parties, but is void as to creditors and purchasers. And yet this instruction informs the jury that' such a sale is presumed to have been made in good faith, when the law says that it will be presumed to have been in bad faith. This instruction, in case there was no delivery, would still require appellant to introduce other evidence of bad faith; we are, therefore, of the opinion that it was calculated to mislead the jury, and should not have been given.
It is insisted that the jury erred in allowing ten per cent, interest on the face of the note from the time of its maturity until the recovery was had. The contract of assignment is that, if the note cannot be collected by due diligence, or if such diligence would be unavailing, the assignor will refund the assignee his money. And, as he acquires the legal title to the note, and all legal interest which had then or might afterward accrue, his damage for a breach of the contract is the sum which appears to be due on the note with all accrued interest, together with costs paid in prosecuting the maker to insolvency. But, when the assignee has reduced the note to a judgment, and he recovers the sum which appeared to be due when he purchased it, then the judgment and the accruing interest, and the assignee’s costs, if unpaid, become the true measure of damages. The assignee, had he collected the judgment, would only have received it with interest, and if the assignor pays the assignee, he has a right to use the judgment, to collect the money. ¡Nor do we see that the assignee can or should collect more from the assignor than he could from the maker, where no defense has bfeen successfully interposed by the latter.
The judgment of the court below must be reversed, and the cause remanded.
Judgment reversed.
