36 Ill. App. 77 | Ill. App. Ct. | 1890
We have reproduced in the foregoing statement all the material evidence introduced on behalf of defendant, and it will be at once apparent that it fails to sustain either of the defenses set up. It appears the notes sued on were made and delivered by defendant to plaintiff’s intestate for a valuable consideration. Also that the suit was not barred by the statute of limitations pleaded. And there is no evidence of the payment of the whole or any part of the said notes. It can not be claimed the release of the defendant from the payment of the notes or stock of goods was given as an advancement, even if the evidence proved such release. All the essential elements to constitute an advancement under the statute are lacking. “Ho gift or grant shall be deemed to have been made in advancement unless so expressed in writing or charged in writing by the intestate as an advancement, or acknowledged in writing by the child or other descendant.” 1 Starr & Curtis’ Stat., par. 7, p. 883; Wilkinson v. Thomas et al., 128 Ill. 363.
Hor does the evidence establish a gift by the father to the son of the stock of goods, or of the debt evidenced by the note’s sued on. The goods were sold, not given, to the son, and were delivered to the son as a purchaser and his notes taken in payment, and the notes sued on were retained by the intestate and were never delivered to the defendant. Giving the evidence the most favorable construction for defendant, only an intention to give can be said to be proven, and much of the evidence that tends to prove this was incompetent, consisting of the conclusion and understanding of the witnesses, and is quite unsatisfactory. One claiming personal property as a gift by parol, ought to be held to make reasonably strict proof of the gift. Boudreau v. Boudreau, 45 Ill. 480. A parol gift of a chattel is incomplete without a delivery or something equivalent to delivery. Without such delivery no title passes. The donor must part with the possession and dominion of the property. The mere expression of an intention to give, or a naked promise to give, without some act to pass the property, is not a gift. People v. Johnson, 14 Ill. 341, and cases there cited; Blanchard v. Williamson, 70 Ill. 647; Fanning v. Russell, 94 Ill. 386; Williams v. Forbes, 114 Ill. 167.
There remain but the defenses in the two pleas last pleaded to be examined. ISfo evidence supports the plea averring that the intestate in his lifetime,-on March 1, 1887, in consideration of natural love and affection released and discharged defendant, even if the averments constituted a legal defense. The last plea also is not proven. It does not appear that at the time the notes were given there was an agreement, as averred, between the parties that the notes were not to be paid. But the plea itself is bad. To support it evidence would be required showing that by an oral contemporaneous agreement the notes, which were absolute promises to pay, were to be payable only on contingency. This can not be permitted. The maker of an absolute note can not show, against the payee, that by a parol agreement, made between the parties at the time such note was made and delivered, the note was to be paid only upon a certain condition not expressed in the instrument. Walker v. Crawford, 56 Ill. 444. A plea objectionable for like reasons as the one we are considering, is thus commented upon by our Supreme Court: “ The plea, in substance, amounts to this—that it was verbally agreed, at and before the time the notes were executed, by the defendant and payee, that the defendant should not be required to pay the note. In considering this question the inflexible rule of law is that the terms of a written contract can not be varied by parol evidence. Where a contract has been reduced to writing, the prior and contemporaneous verbal agreements of the contracting parties are merged in the written instrument, and resort can only be had to the instrument itself to determine the terms and conditions of the contract, and the liability of the parties.” Weaver et al. v. Fries, 85 Ill. 356. The motion for a new trial should have been sustained, and the verdict set aside. It appears by the bill of exceptions such motion was made, and exception taken to the overruling thereof, and although it does not appear the grounds for such motion were set forth in writing, yet, on the authority of O. O. & F. R. R. Co. v. McMath, 91 Ill. 104, this was not necessary. But, we will add, this suit seems to have been commenced by a declaration, filed July 12, 1889, and to the August term, commencing August 6th. The note due in four years had not then matured, and no action to recover thereon would then lie. The appearance of defendant and waiver of process did not give such right with respect to this note. Also, if the declaration is correctly set forth in the transcript, two notes for $3,400, each payable in two years, and a third note payable in three years for same amount, are sued upon, instead of notes maturing in two, three and four years, corresponding with the notes read in evidence. When the cause is redocketed, counsel for plaintiff can amend the declaration, and dismiss as to the note due in four years. The judgment is reversed and cause remanded.
Reversed and remanded.