65 Ill. App. 484 | Ill. App. Ct. | 1896
This is a suit by appellee on two checks, of date January 24, 1895, and February 5, 1895, respectively, drawn by John Bowman on appellant, the first for $35.82, and the second for $ 117.73, aggregating the exact amount of the deposit of the drawer in appellant’s bank. The appellant held a promissory note given by said John Bowman and Yal Gr. Heiter for the sum of $400, of date April 3, 1894, due in ninety days, and before either of the above checks was presented for payment, the appellant had applied the entire deposit as payment on said note, and entered it as a credit thereon.
When the checks were presented appellant refused to pay either of them for the reason that the drawer had no money in the bank on deposit out of which to pay them, it having been applied on the said note. The appellee then brought suit on the checks.
The case was tried by the court without a jury and the appellant pleaded the set-off of the note as against the deposit of Bowman. The court refused to allow the set-off, and gave judgment for appellee for the amount of the two checks.
The only question in the case is whether the appellant had the legal right to apply the bank deposit of Bowman to the payment of his note.
The appellee, not having presented his checks for payment till after the appellant had applied the deposit as payment on the note, he is in no better position than Bowman would have been had he sued to recover the deposit himself. Metropolitan National Bank v. Jones, 137 Ill. 634; Bank of Antigo v. Union Trust Co., 149 Ill. 352.
The question presented is, could appellant apply the individual deposit of Bowman on a note signed by himself and another? On this subject we have no doubt. While the note was joint, it, under our statute, was also several, and appellant might sue Bowman alone on the note and recover the amount due, or it might treat the makérs as joint debtors and sue them jointly and severally. The Marine National Bank v. Ferry’s Adm’rs, 40 Ill. 255; The People, for use, etc., v. Harrison, Adm’r, 82 Ill. 84.
The note could be used as a counter-claim or set-off against Bowman in any suit he might bring to recover his deposit from the bank. Heydon v. Alton National Bank, 29 Ill. App. 458.
The appellee attempted to show that the note in question was a partnership note of the makers, and that therefore could not be set off against ’ the individual deposit of Bowman. The court below seemed to take that view of it, and refused to allow the set-off or application of Bowman’s deposit account on the note. We think this was error. The giving of the note to the bank as individual, in law divested it of its partnership character, so far as to make the debt or cause of action joint and several and not joint only, as it would have, been had the makers owed the appellant as partners only. Appellant, besides, had no notice of the partnership character of the maker’s indebtedness and accepted the note as a joint and several obligation.
Had appellant brought suit against Bowman alone, could he be allowed to plead in abatement joint indebtedness of the two makers as partners and thereby defeat the action against him alone ?
We think clearly not. The cases cited by appellee showing that under certain circumstances" a note given by partners as individuals can be shown by parol to have been given for a partnership debt, do not apply in a case like this. Because the court should have found for appellant on the facts, the judgment of the court below is reversed and the cause remanded.
