11 Ill. 575 | Ill. | 1850
The objection taken by the defendants to the right of the plaintiff to recover on the note, because the blank indorsement by Barker & Best was not filled up on the trial, or at any other time, with the name of the plaintiff, is answered by the case of Gilham vs. The Bank, 2 Scam., 245, where it was held that the filling up of the indorsement was a mere matter of form, 'and that its omission could not be taken advantage of in this Court, unless the objection had been raised in the Court below. Although the legal title to the note may have passed to Seammon by the indorsement by Barker & Best, yet it was not insisted upon the argument that he received it other than as trustee or attorney for the purpose of collection. The two receipts produced, which were given by him for money paid on this note, and dated as late as November, 1844, and February, 1845, nearly a year after the maturity of the note, were signed by him as “ attorney to Barker & Best.” He then held the note but as trustee for them, to the extent of their interest. Such was the nature of the plaintiff’s right. Then let us inquire into the nature of the rights of the other parties concerned.
Briggs testified that he was present when the note was assigned by Metzker, the payee, to Barker & Best; that Metzker owed them thirty-five dollars, and that he indorsed to them this note of seventy dollars ; from the first proceeds of which they were to receive thirty-five dollars, and then the residue of the note, or the avails, was to go to Metzker or his order. Seammon received forty-two dollars on the note for Barker & Best, and the defendants introduced the receipt of Metzker for the balance.
The errors assigned are, the admission of the testimony of Briggs, and this receipt from Metzker. The solution of the former will determine the propriety of the latter; for if it was competent to show that all but thirty-five dollars of the note still belonged to Metzker, it will hardly be denied that he would have a right to receive the pay on the note, and of course to receipt for it.
The objection to the testimony of Briggs was, that it was varying a written contract by parol. But this is a misapplication of the rule. The indorser of a note, when sued upon his indorsement, may show that he received the note as agent for the indorser, and in that capacity indorsed it to his principal; and, although some have doubted whether this would constitute a defence at law, yet it is admitted on all hands that the party could get relief in equity. Chitty on Bills, 35 and 229. And I apprehend it would always be a good defence at law, while the note, was in the hands of the principal. But this identical question was directly raised and expressly decided in the case of Barker vs. Prentiss, 6 Mass., 430, where the suit was brought by the second indorsee of a bill against the maker, and upon the the general issue the defendant was allowed to show that the drawees had indorsed it to the first indorsees, as their agents, for collection, who, for the same purpose, had indorsed it to the plaintiff, and that the first indorser had directed the defendant not to pay the bill to the plaintiff; and this was held to be a good defence. As in this case, the objection was there taken that ££ parol evidence ought not to have been admitted to control or explain the legal effect of these indorsements.” After answering the objection, Chief Justice Parsons concludes this part of his opinion, by saying: “ We are, therefore, satisfied, notwithstanding the terms of the indorsement, that it was regular to prove that the plaintiff, the indorsee, received the bill, not as assignee, but as an agent to collect it for the payees.” And we are satisfied that it was competent in this case to show the nature of the assignment of this note by Metzker to Barker & Best, and by them to Scammon; from which it appears that the balance of the note, after paying the thirty-five dollars due from Metzker to Barker & Best, belonged to Metzker, and that he had a right to receive the residue. The payment of this to him satisfied the note as much as if it had been returned to him and the indorsements erased; which he might have done, as if he had received the note again by a reindorsement. The receipt of Metzker was properly received in evidence; and the judgment of the Circuit Court must be affirmed, with costs.
Judgment affirmed.
