160 Ill. 425 | Ill. | 1896
delivered the opinion of the court:
Appellee filed a claim in the county court of Piatt county, against the estate of Edward Swaney, deceased, and the claim was rejected. In the circuit court, on appeal, there was a trial by a jury and a verdict for the claimant for §852.50, upon which judgment was entered. The judgment was affirmed by the Appellate Court and a certificate of importance granted, under which the case is brought to this court.
On the trial the claimant offered in evidence the instrument upon which his claim was founded, together with proof of the signature of the deceased. The instrument was as follows: .
“$750.00. Bement, III., Dec. 27,1890. “After my death date I promise to pay E. Hanson Camp, or order, the sum of $750, without interest at...... per cent per annum from date, value received.”
Following the above there was a power of attorney, in the usual form, to confess judgment, and the signature of Edward Swaney. To the introduction of this instrument objection was made and overruled, and it is insisted that the ruling was wrong, for the reason that the instrument was not a promissory note. It is conceded that a promissory note may be made payable on the death of a ■certain person, or at a fixed time thereafter, or on demand after such death; but it is claimed that this instrument was not payable at a time fixed, and that the words “after my death date” should be construed to mean some uncertain time after that event. We do not regard the instrument as subject to the objection made. It did not become due until the death of the maker, which was an event certain to occur, but by its terms it became due at once after the occurrence of that event. There is nothing in the language to indicate that the money was to be paid at some uncertain time after the maker’s death. The objection was properly overruled.
It is next argued that there was no evidence to prove a delivery. It was proved that the maker of the note handed it to William M. Camp with directions to deliver it to the payee, who was then somewhere in the northwest, traveling for a coal company. William M. Camp was a banker and a brother of the payee, and had in his possession other papers of the payee for safe keeping during his absence. These papers were kept in a private envelope of the payee, in a safety-box in the bank. William M. Camp had the key to the safety-box, and the note remained there, with the other papers of the claimant, until his return, after the death of the maker. The note was delivered without condition, and after it was placed in the envelope it was held by William M. Camp as the agent of the claimant. Such a delivery, by which the maker lost all control of the note and William M. Camp held possession as agent for the payee in like manner as he held the other papers of such payee, was sufficient. Thompson v. Candor, 60 Ill. 244 ; Gordon v. Adams, 127 id. 223.
It is next contended that the evidence showed that the note was intended as a gift, and that the court improperly modified an instruction stating that if the evidence showed that it was given or intended as a gift or legacy by the deceased to the claimant there would be no consideration for the promise, by adding thereto the following: “Unless you should believe it was intended to take effect as a gift at once and in the lifetime of deceased, but not to be paid until after the death of the maker. ” The modification was wrong, since a promissory note intended as a gift is a mere promise to make a gift in the future, which is not enforcible. (Williams v. Forbes, 114 Ill. 167; Richardson v. Richardson, 148 id. 563.) But there was practically no evidence upon which to base the instruction as asked. A witness, who was an attorney, testified that he had a hazy recollection that he had a conversation with somebody who spoke of providing or giving or letting the claimant have something, and whether it could be done best by will or by a note; but he did not know anything about what the conversation was or what was said about it, and did not know whether the talk was with the deceased or with John M. Gamp, and could not state the time or place of the conversation. This was the only evidence tending in any degree to impeach the consideration of the note, and it was so unsubstantial that if competent it would be wholly insufficient for such purpose. The instruction as asked should have been refused, but as the jury could not find, from the evidence, the fact npon which the rule stated was based, it was immaterial that the rule was changed by the modification.
There was no error in the modification or refusal of other instructions asked by defendants.
After the jnry had retired and remained out some time they requested the court to give them further instructions, and an instruction was given in compliance with such request. It is claimed that the court had no power to call the jury before the bar and give this further instruction. Such a practice is not improper, where, as in this case, equal opportunity is given to each party to submit further instructions. Lee v. Quirk, 20 Ill. 392.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.