Hawes v. Trustees of Illinois Wesleyan University , 21 Ill. App. 337 ( 1886 )

Pleasants, P. J.

By way of subscription to a building fund of the university, appellant made to appellees two notes for $100 each; one providing that it should not be binding until the full amount should be subscribed on a proposition to raise $25,000 in sums of $100 or upward, and the other, of later date, being for the 94th $100 of the $10,000 then required to make up that amount.

On these notes this suit was brought. Pleas of the general issue and set-off were filed, and upon trial by the court a judgment was rendered on the findings for plaintiffs for §236 after crediting a payment on account of $88.

The defense urged was that the full amount had not been obtained as required by the condition in the first note.

Dr. Munsell, who, as financial agent of the university, took an active part in raising it and had charge of it, testified that before this suit was brought he closed up his agency, made a full report to the trustees and turned over to his successor everything in his hands pertaining to it; that he then knew the exact amount that had been obtained, but could not now state it without referring to his report; that his recollection was entirely clear, however, that it was between twenty-six and twenty-seven thousand dollars, that it all came to his hands, and that nearly all of the subscriptions had been paid and the contemplated building erected. Hone of these statements were contradicted.

But this total included a certain subscription of $5,000, and appellant claims it should be counted on another proposition, which was, to raise a further sum of $25,000 in subscriptions of $500 and upward. Dr. Munsell testified that this further . amount had also been fully raised, in such subscriptions, without the one in question, and this was not contradicted. There is nothing substantial in the point.

It is urged that as these papers were not produced, noi any foundation laid for secondary evidence respecting them, this testimony was incom petent under the rule against parol proof of the contents of written instruments.

It appears that the greater part of them- — enough, with the receipts in like sums to make up the required aggregate — -had been surrendered to their respective makers on payment. They were not produced on the trial, nor further accounted for or proved. But we do not understand there was any occasion or attempt to prove their contents, or need to produce them. The fact that papers of the kind and aggregate amount mentioned in the condition of the note had been actually obtained was properly provable by parol, just as it would have been if the papers had been described as bank notes of a mmiimim denomination. The names, dates and amounts were fully shown in the report. If its admission was error, which under the' circumstances is not clear, it did no harm, since no other judgment than was rendered could properly have been rendered, if it had not been admitted. There seems to be no merit in the defense.

Judgment affirmed.