51 Ill. 225 | Ill. | 1869
delivered the opinion of the Court:
This was an action on a promissory note given by McNeill to Robinson, in consideration of the assignment of certain open book accounts, and the defense was, that Robinson warranted the accounts to be unpaid and collectible, which it is alleged they were not. The verdict and judgment were for the defendant.
The mere transfer of the accounts as unpaid amounted to a warranty that they were so, as Robinson knew whether he had received payment, and would be guilty of a fraud in selling as unpaid a debt which had been actually discharged; but the sale implied no warranty that the accounts were collectible, and unless Eobinson expressly warranted they were so, the fact that they were not, would be no defense to the note. The only proof of such warranty is the testimony of a witness as to what Eobinson said at the time of sale. But at the time of the sale a written contract was executed by Eobinson, specifying the terms of the assignment. This was introduced on the trial, and it contained no warranty that, the accounts were collectible, so far as its contents are set forth in the bill of exceptions, which purports to give its substance, the contract itself having been lost before the bill of exceptions was prepared. As this assignment contained no warranty, it was obviously improper to add to its terms by proof of what the parties said at the time of its execution, and the evidence gives for that purpose, and which was objected to, should have been excluded.
The judgment is reversed and the cause remanded.
Judgment reversed.
