157 Ill. 258 | Ill. | 1895
delivered the opinion of the court:
The alleged variance is, that the declaration, in setting out the note, uses the language, “on demand I promise to pay,” etc., whereas the note reads, “Chicago, October 1, 1892. — On demand, after date,” the declaration omitting the words “after date.” This did not constitute a substantial variance. It was sufficient for the declaration to describe the note according to its legal effect, and this it did. The note was not due until after October 1. After that date it was due, not because the words “after date” were added, but because it stated it was due on demand. To set aside the judgment in this case because of the variance insisted upon, would not only be to ignore all rules of equity, but trifling with justice. ■ What possible injury has appellant suffered by the so-called variance?
That the instrument sued on is negotiable is too clear' to be made the subject of serious controversy. The Appellate Court properly disposed of this point. We know of no sufficient reason for saying the instrument was a nullity, even if it had not been negotiable.
We also concur in the views of the Appellate Court on the point of usury. The note is not usurious on its face. If the provision for attorney’s fees was intended as a cover for usury that fact should have been shown.
In the argument of counsel for appellant on the first three objections to the judgment they seem to lose sight of the fourth, viz., that courts passing on such motions exercise an equitable jurisdiction, and argue the case as though this was an appeal from the judgment itself. The question, on motion to vacate a judgment entered by confession, is not whether the judgment shall be set aside for errors of law, but whether there are equitable reasons why it should be opened up to let in a defense. Knox v. Winsted Savings Bank, 57 Ill. 330; Hansen v. Schlesinger, 125 id. 230.
The final contention, .that the affidavit of appellant, together with the admitted facts, show an absolutely good defense to the note on which the judgment was confessed, cannot, in our opinion, be maintained. The affidavit attempts to set up two defenses: First, the note was obtained by fraud; and second, by the terms of a contemporaneous parol agreement it was to be paid only out of dividends realized on the stock for which it was given. As to the alleged parol contract, it is clear that under well-understood rules of law it cannot be used to vary, alter or change the terms of the note. The position that the parol agreement and the note together make a contract partly in writing and partly by parol, is clearly untenable. Moreover, the affidavit does not show that the alleged agreement was continued in force by the parties upon the renewals of the note. For anything appearing in the affidavit that agreement had ceased to be available as a defense to the note, by limitation, long before the judgment by confession was entered. And again, admitting all that is stated in the affidavit to be true, it fails to establish a valid contract, for a consideration, that the note should not be paid. The same is true as to the charges of fraud. All that Tolman said, according to the affidavit, amounted to no more than the expression of an opinion as to the value of the stock and the profits it would yield. The affidavit does not say the stock was not, in fact, worth $130 per share when purchased, nor that, being a director of the bank, affiant did not know its real value as well as did Tolman. The facts show that it was at the time of the purchase, and long afterwards, valuable stock, paying, by its dividends, a large part of the consideration agreed to be paid for it. The conduct of appellant in renewing the note from time to time, without limitation or qualification as to his liability to pay it, is wholly inconsistent with either defense attempted to be set up in his affidavit. Therefore, without reference to the counter affidavit of Tolman directly and positively contradicting each of the facts alleged in the affidavit of appellant, no substantial ground for setting aside the judgment was shown, and there was no error in the refusal of the motion.
Since the submission of the case, counsel for appellant have called our attention to Lincoln Nat. Bank v. Perry, decided by the United States Circuit Court of Appeals for the Eighth District, as an authority sustaining their contention here. We have examined the case, and are unable to see that it has any bearing whatever upon the questions herein involved.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
