195 Ill. App. 440 | Ill. App. Ct. | 1915
delivered the opinion of the court.
This cause was tried before the court with a jury and resulted in a verdict and judgment for defendant, and plaintiff appeals.
The action is on a promissory note for $1,250, made by defendant, payable four months after its date, to the order of Charles Lyle Barnes. Barnes indorsed it to Agnes Gahan Barnes, who indorsed it to the Ken-wood Trust & Savings Bank, before its maturity, who indorsed it to plaintiff. The bank was a purchaser for value before maturity, and through plaintiff, as notary public, protested the note for nonpayment. The declaration consisted of three counts, specially declaring on the note, and the common counts, to which defendant pleaded the general issue, supported by an affidavit of merits reciting want of consideration as the defense.
It is now urged in support of the judgment that there is a variance between the allegations of the special counts and the proof, the averment being that plaintiff was the holder of the note for value before maturity, and the proof showing that plaintiff is a holder of the note after maturity.
We cannot agree with defendant’s contention that there is such variance. The title of plaintiff related back to that of the bank, and it is not disputed but that the bank was a holder for value before maturity. It is also the law that a remote indorsee may declare on the note in his pleading, as the immediate indorsee of the first or any intermediate indorser. Measured by this rule, the averment that plaintiff was holder before maturity was not inaccurate in point of law. Puterbaugh’s Pleading and Practice, 104, and cases cited in footnote.
Moreover, the objection of variance cannot be availed of in a court of review if there made for the first time. It must be made specifically in the trial court, otherwise it is cured by verdict. A general objection of variance would not fulfil the legal requirement. It must be so specific that, if well taken, the pleading may be amended to conform to the proof, as such objection is one of procedure and does not affect the merits. Richelieu Hotel Co. v. International Military Encampment Co., 140 Ill. 248.
In Lake Shore & M. S. Ry. Co. v. Ward, 135 Ill. 511, the court illustrated the rule as to variance by the following language: “It was incumbent upon the defendant to indicate and point out in what the variance consisted, so as to enable the court to pass upon the question intelligently, and also to enable the plaintiff to so amend her pleading as to make it conform to the evidence, and thus avoid defeat upon a point in no way involving the merits of her claim.” Again, the note was admissible in evidence under the common counts, and the plea of general issue to the whole declaration did not raise the defense injected by the evidence given on the part of the defendant against the objection of plaintiff. It was error to overrule the objections interposed. Evidence as to defendant’s dealings with Barnes, arising out of transactions in which the note was given, was not admissible as a defense to such note in the hands of an innocent holder for value before maturity.
The judgment of the Circuit Court is reversed, and as the cause was tried with a jury it is remanded for a new trial.
Reversed and remanded.
