| Ill. | Apr 15, 1862
The only question of real importance presented by this record, and seriously discussed, is, whether the instrument declared on is assignable under the statute.
Chapter 73, title “ Negotiable Instruments,” provides, by section 3, that, “ All promissory notes, bonds, due-bills, and other instruments in writing, made or to be made, by any person or persons, body politic or corporate, whereby such person or persons promise or agree to pay any sum of money, or articles of personal property, or any sum of money in personal property, or acknowledge any sum of money or article of personal property to be due to any person or persons, shall be taken to be due and payable; and the sum of money or article of personal property therein mentioned, shall, by virtue thereof, be due and payable to the person or persons to whom the said ■ note, bond, bill, or any other instrument in writing is made. Section 4 provides, that such notes, etc., and instruments in writing, shall be assignable by indorsement under the hand or hands of such person or persons, and of his, her or their assignee or assignees, in the same manner as bills of exchange, so as absolutely to transfer and vest the property thereof in each and every assignee or assignees successively; and section 5 authorizes the assignee to institute and maintain a suit in his own name for the recovery thereof, etc. (Scates’ Comp. 291.)
The instrument sued on, is as follows:
“Chicago, 21st January, 1859.
“Received from teams in our pork house, No. 114 West Harrison street, 280 hogs, weighing 45,545 pounds, the product of which we promise to deliver to the order of Messrs. Stevens & Brother indorsed hereon.
G. & J. STEWART.”
By section 12, the word pay is treated as synonymous with deliver, where bulky articles are to be paid.
Testing the writing by this statute, there cannot be a doubt upon its assignability. It is an instrument in writing—it purports to be made by persons—by it, those persons promise and agree to deliver a certain article of personal property, to the order of certain other persons. By force of the statute, this article of personal property mentioned in the instrument of writing so made, by virtue of its being so mentioned, and in such form of words, must be taken to be due and payable to the persons to whom the instrument in writing is made.
The statute does not require that the note or instrument in writing shall be payable at any particular time or place, or be expressed for value received, or that any consideration whatever should appear in the writings—an acknowledgment of indebtedness, in tbe simplest form, would seem to be all tbe statute requires to give it the character of negotiability. A writing in this form, probably the simplest, would be a perfect negotiable note under this statute: Due John Brown, ten thousand dollars, July 1, 1862, and signed by the maker. Such an instrument is clothed with all the attributes of negotiability, and imports a consideration, and no averments or proofs are necessary on those points.
The instrument before us is for the delivery or payment of an article of personal property, to wit, the product of 280 hogs, weighing 15,515 pounds, and by the express language of the statute is assignable. Though not a bill or note for the direct payment of money, yet, being made assignable by the statute, it becomes invested with all the qualities of mercantile paper, so far as the rules of pleading are concerned. Ho consideration need be averred or proved in an action on such a writing, unless it is questioned or attacked by a plea to the consideration. And such an instrument is payable on demand, if no time of payment is specified therein. But when the instrument is for the delivery of property, a demand before suit must be alleged and proved. This is a familiar principle. There was no plea to the consideration in this case, and proof of a demand was made before the suit was instituted. The plaintiffs in error contend that the term “ product ” is indefinite and unmeaning. To render it plain and intelligible, testimony was introduced to show what the term meant among dealers in Chicago, and for this, the ease of Myers v. Walker, 21 Ill. 138, was authority. In that case, we held that evidence to prove the word “ season,” used in the contract, had a a local meaning, was properly admitted. When local terms or phrases are employed, the presumption is, the parties understood their meaning, and employed them according to their local signification. Id.
The word “ product,” as employed in this agreement applied to hogs, had a meaning well known and understood by dealers in the article at the place of the contract, and the proof as to that, relieved the writing of the charge that it was indefinite and unmeaning.
The other point made by plaintiffs, that the instrument was over-due on the 26th of January, 1859, when it was indorsed, to such an extent as to put a prudent man upon inquiry in respect to all equities which the makers might have against it in the hands of the promisee, we do not consider a strong one.
All notes payable on demand, are, in one sense, always “ over-due,” but are not so treated until payment has been demanded and refused ; they then become like bills on time, which have been dishonored. To bring them within this rule, there must be evidence of such demand and refusal.
The first count of this declaration, after averring the indorsement to the plaintiff, avers, that on or about the 12th of June, 1859, he produced the writing so indorsed, and presented it to the defendants, and demanded the product to be delivered to him. The second count avers the demand for the product was made May 23, 1859, and so does the third count, which also sets out the indorsement.
The indorsement is without date, and the presumption is, it was made at the date of the instrument. A witness, however, states it was indorsed on the 26th of January, 1859. It was then, in a strict sense, “ over-due ” five days only, and it seems to have been negotiated bona ficLe in the regular course of business.
The presumption, if a note is taken after it is due and payable, undoubtedly is against the validity of the demand,—-the purchaser takes it as a dishonored bill at his peril, and subject to every defense existing against it, and arising out of it, before it was negotiable. When a note, payable on demand, is to be deemed out of time, so as to subject the holder to the operation of this rule, is a question of law, to be determined by the circumstances of each case. There is no certain rule on the subject, nor is there any certain rule prescribing the precise' time in which it must be presented for payment. Circumstances must control this also. 3 Kent’s Com. 91. When it is considered, before the number of hogs specified in the instrument, could be converted into “ product,” some days must necessarily elapse, we should not deem a delay of five days in negotiating it, as unreasonable, nor five months unreasonable in demanding payment. The indorsement being in season cut off all equities, if there were any, in defendant’s favor, and the only hazard incurred in holding it back for payment, was that the release of the indorsers might have been caused by it, but not the release of the maker. It was competent to the holder to extend reasonable delay to him.
The indorsement having been made on the 26th of January, 1859, the defendants could not be permitted to show the state of their demands against the payees and indorsers at a date subsequent to that, unless they could be shown the indorsement was in fact made subsequent to the time it bears date, and that plaintiff took the paper, with notice of the maker’s equities against it. Nothing of this is pretended.
We cannot, from the proof, deem this instrument dishonored prior to June 12, 1859. Was the indorser the defendant, the case would be different. Under many circumstances, a delay of five months in making a demand of payment, would discharge an indorser, but we know of no law by which such delay could discharge the maker. Credit may be given to him at the risk of the indorser.
As the maker’s equities were shut out by this indorsement being made in reasonable time, we do not well see how he can complain if time has been given to him.
The judgment is affirmed.
Judgment affirmed.
I can only regard ihis as a receipt for pork. It wants almost every quality of a promissory note. It has neither time nor place of payment, nor is any amount of money, or specific articles of property, agreed to be paid. It contains an agreement to deliver the proceeds of the pork to the order of the Stevens, but it does not state in what the proceeds shall consist, whether of money or meat, and other product of the hogs. To ascertain that fact, extrinsic evidence had to be heard, as well as to ascertain its value. This is not for the payment of any article of personal property, but is for the product of an article of property, and is therefore not within the statute, and is not a promissory note, or a negotiable instrument.