148 Ill. App. 46 | Ill. App. Ct. | 1909
delivered the opinion of the court.
Counsel for appellant, defendant below, rely on three contentions: First, that the finding of the court is against the weight of the evidence; second, that the plaintiff had not title to maintain his suit; and third, that the court erred in refusing to hold certain propositions as law, submitted by counsel for defendant.
We do not deem it necessary to comment on the contention that the finding is against the weight of the evidence, as we think the evidence itself, which is substantially set forth in the preceding statement, a sufficient answer to it. We think the finding supported by the greater weight of the evidence.
In support of contention two counsel cite and rely on Porter v. Cushman, 19 Ill. 572, and Moore v. Maple, 25 ib. 341. The former case is thus stated by the court: “This was an action brought by Maria Cushman against the appellants, upon a promissory note made by them and payable to the order of De Puy,. and by him specially indorsed to James Strain, and no indorsement by Strain, either to plaintiff or in blank”. On the trial, the court permitted Cushman, the plaintiff, to strike ont the name of Strain and insert her own, as endorsee, and this was held reversible error. In the present case the notes came to the plaintiff’s hands, endorsed in blank by E. H. Bingham, the last endorser. In Moore v. Maple, the court, following Porter v. Cushman, held that while a party who is the equitable owner of commercial paper may, on the trial, be permitted to invest himself with title, by erasing endorsements or filling up blanks in endorsements, one who is not shown, by the evidence, to be the equitable owner of the paper cannot be permitted so to do. Very clearly, the cases cited have no application to the facts of this case. The notes being endorsed in blank by the last endorser, plaintiff, into whose hands the note came, had legal title to maintain the suit. McHenry v. Ridgely, 2 Scam. 309; Burnap v. Cook, 32 Ill. 168; Palmer v. Nassau Bank, 78 ib. 380; Morris v. Preston, 93 ib. 215; Central School Supply House v. Donovan, 70 Ill. App. 209.
In Morris v. Preston, the court say: “All know that bank bills, treasury warrants, notes payable to bearer, and bills and notes endorsed in blank, pass by mere delivery”. While the plaintiff might have written under Bingham’s signature an order to pay to-himself, this was not at all necessary. It was the delivery to him, with the endorsement in blank, which carried the legal title and right to sue.
The third contention is that the court erred in refusing to hold as law defendant’s propositions fourth, fifth and sixth. The theory of these propositions is, that it was incumbent on the plaintiff to prove, by a preponderance of the evidence, that the notes in suit were not accommodation notes, but were given for a valuable consideration, in other words, to prove that the defendant’s special plea was untrue. This might be very convenient for the defendant, but it is not the law. The law is otherwise. Chicago T. & S. Bank v. Landfield, 73 Ill. App. 173, 178, and cases cited.
In Stacker v. Hewitt, 1 Scam. 207, the suit was debt on a sealed note, and it was pleaded that the note was given without any consideration. The court, after referring to the statute relative to promissory notes, bonds, etc., say: ‘ ‘ This act of itself, then, would make any instrument, coming within the description named, prima facie evidence, although it did not express on its face to have been - given for value received, and render the proof by the plaintiff of a consideration unnecessary. But it is considered well settled, and a principle admitting of no doubt, that the defendant by his plea was bound to sustain by proof the existence of the fact averred in his plea, and- upon which the plaintiffs had taken issue”.
In Benson v. Morgan, 26 Ill. App. 22, the defendant pleaded that the consideration of the note sued on was illegal, in respect to which the court (ib. 25) held that the burden was on the defendant to prove his plea by a preponderance of the evidence, citing Pixley v. Boynton, 79 Ill. 351. The court properly refused to hold the propositions, and each of them, as law.
The judgment will be affirmed.
Affirmed.
