35 Ill. App. 195 | Ill. App. Ct. | 1889
This case presents an important question, though in itself it is of small importance.
The appellant acquired the instrument copied below, before maturity, in good faith, and for value. It had passed through the hands of one Smith, under an indorsement in blank of the payee.
While Smith held it, he filled certain blanks with the words in italics in the copy. The blanks were filled in a different handwriting, and with ink different from the other writing on the paper, but the appellant had no notice in fact that the instrument had been added to since the appellee parted with it. It is as follows:
“$100. Chicago, Nov. 8, 1887.
“ On Nov. 15,1887, after date, for value received, I promise to pay to the order of C. A. Hamper, one hundred dollars, at 160, 162 and 164 Ogden Ave., with interest at 8 per cent, per annum after due, until paid, and to secure the payment of said amount 1 hereby authorize irrevocably, any attorney of any court of record to appear for me, in said court, in term time or vacation, at any time hereafter, and confess a judgment without process, in favor of the holder of this note, for such amount as may appear thereon, together with costs and fifty dollars attorney’s fees, and to waive and release all errors which may intervene in any such proceedings, and consent to immediate execution upon such judgment, hereby ratifying and confirming all that my said attorney may do by virtue hereof.
“ P. P. Alwabd.”
The case of Burwell v. Orr, 84 Ill. 465, does not settle this. It is, perhaps, inferable that the plaintiff there held for value and without notice, but it is not stated.
What the appearance of the instruments was on their face is not shown. There is no reference to the principles by which the holder of such an instrument is protected, if he is entitled to protection. Why the rules followed in Yocum v. Smith, 63 Ill. 321, did not apply, does not, in terms appear. In this last case, the familiar rule, that a bona, fide holder of commercial paper for value, before maturity, is not defeated by alterations which could not be detected, and which the negligence of the maker furnished facilities for, is applied.
If the blank filled with fifty had been a space following the word hundred, the appellee would have been liable to pay the added fifty. But this is not a case of alteration; the spaces were wholly blank and the delivery of commercial paper in that condition is authority to the holder to fill the blanks. Tiedeman on Com. Paper, Sec. 283; 1 Dan. Neg. Ins., Sec. 142; 1 Pars. B. & N. 33.
Mor is the execution of such authority confined to commercial paper. Bish. Con., Sec. 1174; Jewell v. Rock River Co., 101 Ill. 57.
It is reasonable to apply the same rule to the power of-attorney part of the instrument, as well as to the promissory note part, as was done in Vliet v. Camp, 13 Wis. 198.
In the absence of express agreement the holder probably could only fill the blanks as the context showed they ought to be filled, or where the context furnishes no guide, for example, the amount of attorney’s fees, then with what was reasonable. But if an excessive amount is put in, it is not an alteration. The authority existed and has been exceeded. The consequence, at the worst, for the holder, is that the excess is void. Johnson v. Blasdale, 1 S. & M. (Miss.) 17; Goss v. Whitehead, 33 Miss. 213.
It is a question of fact whether $50 as an attorney’s fee, is excessive, and if it is, then the amount should be reduced to a reasonable one, and the promissory note part of the instrument remains valid. •
The judgment of the Circuit Court having been that the whole instrument is void, it is reversed and the cause remanded.
Reversed and remanded.
