Scott v. Gilkey , 153 Ill. 168 ( 1894 )

Mr. Justice Baker

delivered the opinion of the court:

We will assume, for the purposes of this appeal, that the banking house of Standiford Bros, had authority from appellee to collect the two promissory notes in controversy. The bank, then, having been authorized by appellee to collect the notes, the question arises, did it transcend its authority in the manner of accepting payment,—in other words, were the notes in fact paid.

It is the well settled rule in regard 'to negotiable paper, that payment can only be made with money, except with the consent of the holder, and that an agent to collect cannot accept anything but money in payment, unless he has been expressly authorized by his principal to receive something else. Lochenmeyer v. Fogarty, 112 Ill. 572; Padfleld v. Green, 85 id. 529; Nolan v. Jackson, 16 id. 272; Tiedeman on Com. Paper, sec. 375, and authorities there cited; 18 Am. & Eng. Ency. of Law, 194, and authorities cited in note 1. There is here no claim that appellee consented that the notes should be paid otherwise than in money, or that he authorized the bank to accept in his behalf anything but money in payment of them. Did the bank receive from appellant money in discharge of the notes? If so, they were properly paid. It is not claimed that any money actually changed hands, but appellant’s contention is, that he borrowed from the bank the mon§y to pay the notes, and had the amounts due on them credited by the bank upon appellee’s account out of the funds so borrowed.

The record discloses these facts: That on September 8, 1891, appellant delivered to the bank his check for $259.25, which was the amount of the interest due and unpaid on the first of the notes here in controversy, and also delivered to it his two notes, for $1650 and $5000, respectively, these two notes together making the amount of the principal of the aforesaid note. The new notes drew five per cent interest from their date, and were made payable to the order of Standiford Bros. The bank thereupon surrendered to appellant, stamped paid, the first of the aforesaid notes which had been placed in its hands for collection by appellee. On September 14, 1891, appellant delivered to the bank, his check for $264.50, which was the amount of the interest due and unpaid on the second of the last mentioned notes, and also delivered to it his note dated September 12, 1891, for $6650, which was the amount of the principal of that note. The new note drew five per cent interest from its date, and was made payable to the order of Standiford Bros. The bank thereupon surrendered to appellant, stamped paid, the second of the notes belonging to appellee. The books of the bank, which were offered in evidence, showed the receipt, on September 8,1891, of appellant’s notes for $5000 and $1650, respectively, but no credit to him as for money, and showed the charge to him of the check for $259.25. Appellee’s account, in the ledger, showed a credit to him of that date of $6909.25. The books showed also the receipt, on September 14, 1891, of appellant’s note of the 12th for $6650, but no credit to him for money, and also showed the charge to him of the check for $264.50. In appellee’s account, on the ledger, there appeared a credit to him on the 14th of $6914.50. The journal, which contained the original entry of this item of credit, showed it as follows: “September 14, Monday.—W. T. Gilkey, by Josephus Scott, note and interest, $6914.50.” The journal statement of the credit of September 8 was as follows: “September 8, Tuesday, ’91.—W. T. Gilkey, $6909.25.” The books thus showed that appellant was not credited therein with the money he claims to have borrowed of the bank, and with which he claims to have taken up the notes in controversy.

The contention of appellant that the alleged payment of the said notes was made with money borrowed of the bank is in direct conflict with the entries in the bank books, and is not even supported by his own testimony, when it is considered as a whole. Appellant attempted to make payment of the notes payable to appellee by giving to Standiford Bros., the bankers, his notes payable to them. It follows, therefore, that the principal of the notes which are the subject of this suit has not been paid. See authorities cited supra.

With reference, however, to the interest on those notes, we take a different view, and are of the opinion that appellant’s checks for $259.25 and $264.50, respectively, dated September 8, 1891, and September 12, 1891, constituted a valid payment of the interest due at those dates. According to appellant’s testimony he had on deposit in the bank, at the time he delivered the checks to it, sufficient money to pay them, and there is nothing in the record to show that this was not the fact. The amounts of the checks were charged against him and credited to appellee on the books of the bank.

Appellant further contends that the. trial court erred in giving the fourth instruction for appellee, and in refusing to give the second, seventh, twelfth and thirteenth instructions asked in his own behalf, and urges that therefore the judgments of the courts below ought to be reversed. The trial court undoubtedly erred, as thus contended, but, in the light of what we have already said, we do not think the errors in question could have materially prejudiced the rights of appellant, of that we would be justified in reversing the judgments of the trial and Appellate Courts on account of those errors.

We are of opinion that the judgment of the circuit court, as modified by the judgment of the Appellate Court, was right, and since we find no harmful error in the record, the judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.