17 Ill. 602 | Ill. | 1856
The proof in this case is entirely insufficient to warrant the master’s report of the amount due the complainant, or to justify the decree of the court, as against the infant defendants. In the first place, the words indorsed in pencil on the back of the principal note, “Received, Archer, $1,800,” required explanation, before the master refused to allow that as a credit on the note. The maker of the note was dead and the suit was prosecuted against his representatives, a part of whom were infants. This note is produced with this indorsement upon it, which, if not absolute proof of payment to that amount, raises a strong presumption of payment. It must have been put there while in the hands of the holder, who should have the means of explaining it, if it was not intended as evidence of payment. Indeed, it is difficult to conjecture for what other purpose it could have been put there. These infant defendants, as to whom full proof is required, cannot be presumed to know any thing of the transaction, and cannot be expected to explain it. Unexplained, we think the complainant should be held bound by an indorsement, which the law presumes was made by him, or with his consent and direction. Again, several other sums were allowed the complainant as payments made by Taylor, Breese & Co., to Harman and Loomis, to E. Doolittle, and to Kinzie, Davis and Hyde, without a particle of legal proof to sustain the report of the master. He reports copies of papers showing rhat those parties profess to have received the several amounts reported, of Seth Payne, on account of demands which they held against James Whitlock. But there is no proof that they were just debts against James Whitlock, or that he had directed them to be paid. It is true the mortgage authorized Taylor, Breese & Co., to pay debts of Whitlock to those parties and stood as a security for the repayment of advances thus made. But this did not authorize them to pay any account' which those parties might present against Whitlock. If they paid a claim without his express sanction, they necessarily must take the responsibility of proving that the amount was actually due from Whitlock. Again, admitting that those debts were justly due those parties, and that the receipts produced were actually executed by them, of which there is no proof, still the payments do not appear to have been made by Taylor, Breese & Co., who were the parties authorized to make the payments, and indemnified by the mortgage, for the payments thus to be made. Nor do they show that the payments were made of funds belonging to Taylor, Breese & Co., or on their account, or for their benefit. The receipts show that the payments were made by Seth Payne, who, for aught that appears, was a total stranger to the mortgage, and who may as well be presumed to have made the payments, out of his own funds, or of money belonging to Whitlock in his hands, as of the moneys of Taylor, Breese & Co. When we remember that nothing could be taken for granted against these infants, but that every thing was required to be proved, as much as if every thing had been denied by theeadult defendants in their answers, it will be apparent that the proof was defective, in every particular, to sustain the decree.
The decree must be reversed, and the suit remanded.
Tip.r.re.e reversed.
