| Ill. | Apr 15, 1863
delivered the opinion of the Court:
This was an action of assumpsit, brought in the Peoria Circuit Court, by the indorsee against the indorser, of a promissory note. There are three counts in the declaration; the first on the note and indorsement, the second averring, in addition, the insolvency of the makers, and the third avers, that since the note was made, the makers had dissolved partnership, and transferred their- remaining property to the defendant, the indorser, with the understanding that he should pay the note. ' That in consideration thereof, after the note became due, and that plaintiffs would forbear suit until the last of June, 1861, the defendant promised to pay the note, by the last of June, with interest at the rate of ten per cent, per annum from the time the note fell due.
The common counts were added. The pleas were the general issue, and specially that when the note fell due the makers were solvent, and with due diligence the money could be had of them, and that the makers had not transferred their property to défendant, nor was there any understanding that defendant should pay the note, nor did he promise to pay it or any part of it.
On these issues the cause went to the jury, and a verdict found for the defendant. A motion for a new trial was made and overruled, and judgment against the plaintiffs for the costs.
We shall notice but one or two of the errors assigned, as the case turns on them.
The first is, the qualification given by the court to the plaintiffs’ third instruction. This instruction as asked was as. follows: A promise by the indorser of a note after due to pay it, amounts tp a waiver of demand and notice and of proof of insolvency of makers. To this the court added: “ Provided . such promise was made with a knowledge of the facts on his part; and also, provided the makers of the note were insolvent at the time of the maturity of the note.”
The defendant in error doubts whether this instruction as asked, is the law, as given after being modified, or refused as asked, and contends, if not law as refused it was properly refused, and if not law as given, the plaintiffs have no right to complain.
We think the qualification of the instruction in the last member of it is erroneous, and must have prejudiced the plaintiffs’ cause. Under it, notwithstanding the plaintiffs’ showing, that the promise was made with a full knowledge of the facts, the jury could not find1 for the plaintiffs unless the makers were insolvent.
Now, if the instruction in its original form was not the law, it was the duty of the court either to refuse it altogether, or so to amend it as to make it law, and then give it as amended. If a court undertakes to amend an instruction, it must take care that the instruction when amended declares the law. An instruction given by the court, on its own motion, is quite as influential with the jury, or more so, than one given at the instance of either party, and in either case it must declare the law on the point made.
This instruction, in the last member of the qualifying clause, is not the law, as we understand it, for it is wholly immaterial, when claiming a recovery of an indorser, on the fact of his promise to pay with a knowledge of his release as an indorser, whether the makers were or not insolvent. Their solvency, on the contrary, has nothing to do with the liability imposed upon the indorser, under the circumstances of knowledge, if proved.
It is objected by the plaintiffs in error, that the defendant’s fifth instruction is erroneous.
That instruction is as follows: A promise to pay after defendant was legally released, without any consideration, if proved, is voidable and not binding upon defendant, and may be disregarded by the jury.
This instruction is broad enough to cover the case of a promise made with full knowledge of the facts, and makes no distinction between such a promise made with and one made without knowledge. If made without knowledge it would be the law, but if with, it is not the law, nor is it necessary there should be a new consideration to support a promise made with knowledge. But, we think, this instruction is so qualified by the sixth, as to cure the defect and error. The sixth is: “ Such promise made by defendant in ignorance that his liability has been released by the laches of the plaintiff, is not binding on the defendant.”
The rule, we believe to be in such case, that if an indorser makes a new promise when he believed he was liable, it is for the plaintiff to prove that he knew the facts which would discharge him, and this knowledge may be shown by facts and circumstances.
The law presumes that all men know the law, but not the facts, hence a plaintiff, seeking to recover in such case, must show by sufficient proof of facts and circumstances, or otherwise, that the party sought to be charged on his promise knew the fact of his release.
The objectionable part of the third instruction, made so by the court, is not removed by the fourth instruction, for that does not ignore the proof of insolvency. It is as follows:
A subsequent promise by an indorser to pay a note, with knowledge of the facts, presumes that the promiser is liable, and that all the conditions required to fix his liability had been complied with.
The third instruction, as modified, told the jury distinctly that there must be proof of the insolvency of the makers of the note at the time of its maturity. By the terms of the fourth instruction, the jury would not understand this proof was dispensed with, or that the fact of insolvency was to be presumed.
As to the error assigned, admitting improper testimony for the defendant, we have to say that the declarations of the defendant, made on a second interview of his own seeking, about this note, in which sewing machines were spoken of, and in which he attempted to qualify the promise to pay the note made at the first interview, as stated by the witness, and to apply it to two sewing machines sent to Chillicothe, which he was to pay for, and not the note, was not evidence against the objections of the plaintiffs, and should not have been received. It had nothing to do with the issues, and has the appearance, very much, of an attempt by the defendant to make evidence for himself.
For this error in receiving this testimony, and for the error in qualifying the third instruction of plaintiffs, the judgment is reversed, and the cause remanded for a new trial, and for further proceedings not inconsistent with this opinion.
Judgment reversed.