71 Ill. 109 | Ill. | 1873
delivered the opinion of the Court:
Under the issue made by the pleadings, whether appellant’s intestate ever executed the note sued on, evidence was given for appellees, plaintiffs below, tending to show a recognition by intestate of liability upon it, and this was the only evidence tending to show that he executed it.
Upon the part of the defendant, evidence was given tending to show that the signature was not that of the intestate.
This being the state of the evidence, the court, on behalf of plaintiffs, instructed the jury that it was wholly immaterial to the issue in the case whether the note given in evidence was signed by John Gleason, with his own hand, or not, and the jury will wholly disregard all evidence offered by the defendant showing, or tending to show, that the note was not signed by him, if the jury believe, from the evidence, that he recognized and promised to pay said note.
This suit was between the payees and the administratrix of the estate of the alleged maker. The instrument was under seal, and the name of a subscribing witness appeared, which was the same as one of the plaintiffs. Ho attempt was made to account for the non-production of the subscribing witness, and perhaps the presumption should be indulged that, the name being the same, he is presumed to be the same person. However this may be, the instruction is, in effect, that, if intestate’s name had been forged, or signed by an unauthorized person, still the recognition and promise to pay would, under all circumstances, make the intestate liable. Such is not the law. “'It is,” says Parsons, “an almost universal rule that the ratification must be made with full knowledge on the part of the principal of the facts affecting his rights.” 1 Pars. on Notes and Bills, 101; Helm. v. Cantrell et al. 59 Ill. 529.
The defendant’s counsel asked an instruction substantially embodying this rule, but it was refused.
This action was debt, and was brought before the Practice Act of 1872. The jury found a verdict only for damages, which included the principal and interest, and judgment was given upon it, as in assumpsit. This was error, as has been repeatedly held by this court.
The judgment will be reversed and the cause remanded..
Judgment reversed.