54 Ill. App. 471 | Ill. App. Ct. | 1894
Lead Opinion
delivered the opinion of the Court.
It is insisted that there is a variance between the declaration and the note filed therewith, upon which the judgment was entered, because the note described in the declaration is payable on demand, -while the note upon which judgment was entered is payable on demand after date.
If this constitutes a variance it is not such an one as could be taken advantage of by motion after judgment; moreover, the error in this regard, if such there ivas, is one which is released by the release of errors. Hall v. Jones, 32 Ill. 38; Hall v. Hamilton, 74 Ill. 437; Frear v. Commercial National Bank, 73 Ill. 473; Carpenter v. Bank, 119 Ill. 356.
The motion to set aside the judgment did not proceed upon the ground of any such variance; if the attention of the court below had been called thereto, it could have been instantly removed by amendment.
It is also insisted that the note was not due when the judgment was entered thereof, because no demand had been made for the payment of the same.
It is not necessary before bringing suit upon a note payable on demand, that demand of payment should have been made. Butterfield v. Kinzie, 1 Scam. 445; Hunt et al. v. Divine, 37 Ill. 137.
The fact that, as appears from the face of the note, collateral security was given for its payment, did not destroy its negotiability. The giving of such collateral in no wise interfered with the necessary characteristics of the instrument as a promissory note. The promise to páy was still certain and for a certain amount.
The fact that the instrument provided that if the collateral proved insufficient for the payment of the note, the maker would pay the deficiency remaining after an exhaustion of the collateral, neither increased nor decreased the responsibility of the maker, or rendered his liability in any respect less certain and definite. Valley Bank of Chambersburg v. Crowell et al., 148 Pa. St. 284.
Nor .did the fact that the instrument upon which judgment was entered provided that in case of confession of judgment upon such note, an amount of five per centum might be added for attorney’s fees, make the instrument usurious. Undoubtedly, if such agreement had been inserted as a cover for usury, it would have rendered the note usurious; but appellant, in his affidavit setting forth the defense he claims to have to said note, and the reasons existing why judgment entered thereon should be set aside, makes no mention of usury and does not pretend that the note or the judgment entered thereon is in any way or wise tainted with usury.
This defense, so far as appears from the record, is made for the first time in this court. Had appellant set up in the Circuit Court the defense of usury, that court might, if convinced that the note was usurious, have given him the benefit of the defense provided by the statute therefor. Fleming v. Jenks, 22 Ill. 425.
Courts of law do exercise an equitable jurisdiction over judgments entered by confession, for the purpose of doing justice, and will vacate, reduce or affirm the same as appears to such court to be just and equitable.
From the affidavit of appellant it appears that this note was given for stock in a bank controlled by appellee; that when the stock was purchased and the note given, appellee made glowing representations as to the profits likely to be derived by appellant from a purchase of said stock; and, moreover, promised that he, appellant, should never lose anything by reason of such purchase, and should not be called upon to pay the note except out of dividends earned upon the stock. These promises were entirely verbal, and it is manifest can not be availed of by appellant as a defense to this note.
Appellant made a plain, certain, 'definite written contract; this contract he now seeks to vary by proof of a contemporaneous verbal agreement, by which this note is to be changed to an indefinite instrument, payable, if at all, only out of a particular fund, to be derived from particular earnings, and in no event is the instrument to subject its maker to loss.
Written contracts can not, by proof of contemporaneous parol agreements, be so varied. Walker v. Crawford, 56 Ill. 444-448; Johnson v. Glover, 121 Ill. 283; Mosher v. Roberts, 117 Ill. 446; Schultz v. Plankinton Bank, 141 Ill. 116; Heisen v. Heisen, 145 Ill. 658; McGinnis v. Fernandiz, 126 Ill. 228-232.
The further allegations that appellee lias, by fraudulent doings, rendered the stock purchased by appellant practically worthless, and that the affairs of the bank are being wound up by a court of chancery, in which proceeding appellant, as an intervening petitioner, is endeavoring to recover a large sum from appellee on account of his fraudulent proceedings in the management of said bank, constituted no defense at law.
Damages arising from the fraudulent practices of appellee, by which it is alleged the stock of appellant has been rendered worthless, can not be set off as a defense to an action upon a promissory note.
The affidavits filed by appellant failed to show either a defense at law, or any equitable ground for setting aside the judgment.
What remedy appellant may have in other proceedings is a matter upon which we are not called to express an opinion.
The order of the Circuit Court refusing to set aside the judgment is affirmed.
Dissenting Opinion
I dissent from the position that a variance may not be objected to in the court below; also that a release of errors in the cognovit has any effect in that court.
