Humphreys v. Collier , 2 Ill. 47 ( 1832 )

Smith, Justice,

delivered the opinion of the Court:

This was an action brought by the appellees against the appellant, in the Circuit Court of Randolph, as the assignor of a promissory note of hand, under seal, to recover the balance due at the time of the assignment, and still remaining unpaid. The declaration alleges the making of the note, and the assignment and delixmry to Collier and Powell; and then specially avers, that at the time of such assignment, there existed a total inability of the maker to pay the same, and that payment could not be coerced by the ordinary course of law; that a suit would have been unavailing to compel the maker to pay the same, by reason of his total xvant of property to be reached by an execution upon any judgment which might have been obtained by suit against him on said note; that the maker has not paid or caused the said balance to be paid to them, or any part thereof, but has wholly refused, of all which the appellant had notice. To this count was added a count for goods, wares, and merchandise sold and delivered, and the usual money counts. The defendant in the Court beloxv, pleaded the general issue, and payment to the second and third counts; to which plea of payment, there xvere a replication and issue.

During the progress of the trial, various instructions xvere prayed for, by both the plaintiffs’ and defendant’s counsel in the court below. It is not esteemed important for the consideration of the present case, to examine the correctness of but txvo, xvhich are contained in the bill of exceptions. The first xvas prayed for by the defendant’s counsel, and is as follows: “ That, should the jury be of opinion that the note of said Barcroft xvas not received in full payment of the goods purchased, by the defendant, of the plaintiffs, at the time it was endorsed, at their oxvn risk, that then before the plaintiffs can recover in this case against the defendant, as endorser of the note, the plaintiff must prove a demand of payment from Barcroft, and notice to the defendant, or at least that they demanded payment of Barcroft.” The refusal of the Circuit Court thus to instruct the jury, is assigned for error; and we are now to consider whether it is in fact so. An obvious answer is to be given to this objection; no rule is certainly better settled, than that which holds a party to the proof only of the material averments in his declaration. We shall look in vain into the first count, for an averment that a demand of payment was made, and notice of non-payment given to Humphreys. The plaintiffs have based their right to recover, not on the ordinary liabilities of an assignor of a note or sealed instrument of writing, for the payment of money, but on the avowed insolvency of the maker at the time of the assignment of the note in question; and have framed the count on the note upon such a supposed state of facts. It is therefore most manifest, that to have required proof of demand and notice, would have been to have required proof of matters not in issue, but entirely foreign to the issue. The defendant having taken issue on the facts contained in the declaration, it was sufficient for the plaintiffs, by proof, to sustain the material averments therein contained; and they could not be called on to prove more. If demand and notice were necessary and material averments, the defendant should have demurred to the declaration, and not pleaded in chief. But as the declaration is evidently framed with a view to that portion of our statute relating to promissory notes, bonds, due-bills, and other instruments in writing, making them assignable, which requires due diligence to be used to first collect the amount from the maker by suit, except where the institution of such suit would have been unavailing, it may become necessary and proper to consider whether, under the second section of that act, in relation to a case of notorious insolvency, when the note becomes due, demand of payment from the maker, and notice of non-payment to the assignor, are necessary to be averred and proven before a party shall be entitled to recover.

From a consideration of the causes which gave rise to the laws which exist in, and govern, states and countries greatly commercial, it will be evident that many of the principles applicable to a commercial people, in the negotiation of assignable, endorsable, and transferable paper securities, and instruments for the payment of money, would but illy suit the condition of a people so purely agricultural as we are; and hence the impolicy of adopting the principles and rules of decision which have been made in states and countries that have adopted the law of merchants in relation to negotiable paper. It must be recollected, that the British decisions are not- only different, for the reasons assigned, but the statutes of Anne, under which most of them have been made, differ in material points from ours. We are not only, then, restricted from adopting their rules where inapplicable, but we are prohibited by the express terms of our own laws, which have been framed and adopted, doubtless, as being more congenial to our modes of transacting such negotiations, and as better calculated to insure equitable and legal liabilities between parties. The construction of that portion of our statute, it would seem, is of easy interpretation. If the suit, which it requires to be prosecuted, as the evidence of the means of diligence, would have been unavailing, then it is declared—the assignee may maintain an action against the assignor, as if due diligence, by suing, had been used.

Now, in what case, more than in the case of an absolute and entire insolvency of the maker of a note or bond, can it be imagined that a suit would be unavailing ? It seems difficult to conceive a case more apposite or more comprehensive in its nature: indeed, it might be said to have been the very case to which the exception of the statute was intended to apply; and as the statute has also made the same exception in cases where the maker has absconded or left the State, it cannot, perhaps, be so readily perceived what other state of facts could well exist to meet the application of a further exception. Satisfied that such were the objects of its framers, we are bound to consider that, in cases of notorious insolvency of the maker of an assignable instrument, contemplated by our statute, after it becomes due, and so continuing up to the time of action brought, the assignor must be liable to his assignee.

On the second point of instructions, which were asked by the plaintiffs, in relation to the laws of Missouri, as applicable to the case before the Court, it is proper to remark, that it nowhere appears in the declaration, nor, indeed, in any part of the record, that the note or assignment was made in Missouri; nothing appears in the bill of exceptions to show that there was any evidence that the assignment or transfer of the note took place there; and yet such must doubtless have been shown by evidence, for on that ground alone could it be imagined that the Circuit Court would have instructed the jury that the laws of Missouri, as to the contract, were to govern them. If this had appeared, and we could see with judicial eyes that the contract was made there, then doubtless the instructions, as to those laws, would have been correct. In the absence, however, of that fact, and much as it is to be regretted that omissions of this character, (if it be one in the present case,) which might have been remedied in a moment, should become available here, to destroy the fruits of a recovery; still, as there is no discretion left under such circumstances, the judgment of the Court below is reversed, and the cause remanded to the Circuit Court for further proceedings, not inconsistent with this opinion.

Judgment reversed.