| Ill. | Apr 15, 1859
The appellant urges a reversal of the judgment in this case, because he was not in default when the suit was instituted. The evidence shows that appellee sold to appellant a stock of merchandise and received as a portion of the consideration real estate, and was to receive the balance in notes, with Tucker as security, due at different times, from two to ten months from the date of the sale. But by some subsequent arrangement, he received appellant’s notes for the amount, to be held until the others were procured.
Porter testified, at the time of the purchase it was agreeed that the notes were to be given, with Tucker as security, within a week from that time.
Thomas testifies, that appellant was to give Tucker’s notes indorsed by himself, and that he stated, that he expected to receive them by the time the invoice was completed. But that the notes were not received until after appellant had gone to New York, and about the 7th of January, and that witness showed them to appellee, and asked if he should send them to New York for appellant’s indorsement, when appellee said that when appellant left it was arranged that he should indorse them on his return; and appellee also stated that the notes were satisfactory, and he then received them. Appellee also informed the witness that before appellant left he had executed his notes, which he was to hold until the others were arranged, and the witness learned from him that these notes were in bank. This witness also testifies, that when appellant returned from New York he said to appellee that he was ready to do as he agreed, as to giving his indorsement on Tucker’s notes, and taking up his own. That appellee said but little on that occasion. It does not appear that any of these notes were returned before or at the trial. The evidence of this witness is uncontradicted and he stands unimpeached.
Whatever may have been the first arrangement between the parties, we think it evident that, when appellee received the notes of appellant he then Avas to hold them until appellant’s return from New York, when these notes were to be exchanged for those of Tucker indorsed by appellant. And when appellant offered to indorse them, he had fully performed his part of the agreement. If such had not been the arrangement, it is unaccountable why he should have expressed satisfaction with, and why he received Tucker’s notes. It is also a pregnant fact, that the notes of appellant were placed in the bank for collection by Hunt, who must have received them from appellee. We are at a loss to perceive any, even the slightest grounds to insist upon a recovery, Avhen he was holding the notes of Tucker for the amount of his claim, and had parted with the notes of appellant, for the same amount, to Hunt, who had placed them in the bank for collection. He knowingly and understandingly accepted Tucker’s notes, and although it may have been after the day, and the notes may not have been in the form previously agreed upon, by the acceptance, he waived the right of objecting to the notes as not being in compliance with the contract. He should have refused.to receive them—but neglecting to do so he cannot be heard to say the appellant has failed to perform his part of the agreement, or that the notes are insufficient.
Even if the appellant had failed to comply on his part, a recovery could not be had for the balance of the price of the goods, without a surrender and cancellation of these notes. It might have been sufficient to have done so on the trial before the case was submitted to the jury; but that was not done, and having failed to do so, the court should have excluded the appellee’s evidence on the motion made for that purpose. Nor has the error been cured by surrendering them in court after the jury had returned their verdict. Harris v. Johnston, 3 Cranch, 311" date_filed="1806-02-19" court="SCOTUS" case_name="Harris v. Johnston">3 Cranch, 311. The notes in this case, when the action was brought and until the first trial in this case, were in the hands of Swift, a banker, and deposited there by Hunt for collection. They do not appear to have been under the power or control of appellee, but rather under that of Hunt, but whether he held them, by indorsement or as collateral security does not appear from the evidence. The evidence therefore did not warrant the giving the plaintiff’s third instruction. And the instructions that in case the jury found for the plaintiff that they should give interest from the date of the sale were erroneous, as this was a sale on credit, and until the time of the credit expired, no interest was chargeable, even if the appellee had a right to maintain this action.
The judgment of the court below must be reversed and the cause remanded for further proceedings.
Judgment reversed.