Roseville Union Bank v. Gilbert ( 1887 )

Welch, J.

This was a suit brought by the Boseville Union Bank against Frank P. Gilbert and John A. Gordon on a promissory note, in which it was admitted on the trial that Gilbert was the principal maker of the note and Gordon was surety.

Gilbert made no defense but suffered a default. Gordon interposed a special plea alleging an extension of time of payment, in which it is alleged: cl And that when the said note became due, to wit, on the 15th day of May, A. D. 1876, the plaintiff, at the request of the said Frank P. Gilbert and in consideration of the sum of §2.08J-, being the interest in advance for thirty days, then and there agreed with the said Frank P. Gilbert to give, and did then and there give to him, further day of payment of the amount of said note, to wit, the 14th day of June, 1876, then next ensuing, without the knowledge or consent of him, the said John A. Gordon, by reason whereof the said John A. Gordon became discharged from all liability upon said note.” Beplication, trial, and verdict for Gordon on the plea. Judgment overruling motion for a new trial and judgment on verdict against Gilbert for §450. This appeal is taken from the judgment overruling motion for a new trial. We are of the opinion the evidence sustains the plea. Gilbert states: “ When the note was due I went to Pratt, who was cashier of plaintiff’s bank, and asked him for an extension of thirty days on the note, paying interest on same. Told him I did not care to bother Gordon. My best recollection is that I paid the interest for an extension. At one time there was a board hill applied on the note; can’t say certainly when, but one of the payments on the note was a board bill; other payments were indorsed in money.” On cross-examination he says: “ Have no recollection of making the payment on the note; can’t bring any certain dates of payment.” Gordon states that “ he never consented to an extension of time on the note; some two or three months after the note fell due, and about the time Gilbert made an assignment, Seth F. Pratt called on me at my office and told me that he had agreed with Gilbert to extend the time of the note, and asked me if I considered myself hound for the note; I told him no; that he ought to have'collected it long ago, and not let it lie so long. Pratt said: ‘Well, I suppose! have given time on it, and that will release you.’ I got a copy of the note from Pratt; indorsements on back, same then as now; the writing on copy and indorsements are all Seth Pratt’s.”

Copy of note and indorsements :

“ $250. Roseville, Ill., Feb’y 12, 1876.

“ Ifinety days after daté, we, or either of us, promise to pay to the order of the cashier of the Roseville Union Bank two hundred and fifty dollars, value received, payable at their hanking office, with interest at ten per cent per annum after maturity. Indorsements: ‘ Interest paid on the within for thirty days from May 15, 1876.’ ‘Received interest to July 15, 1876.’ ‘ 8-14. Received on the within ($10) ten dollars.’ ”

It further appears that notice in writing had been given plaintiff’s bank to produce the books of the bank showing items of income of the bank for the months of May, June, July and August, 1876. Seth F. Pratt, the cashier, admitted in the presence and hearing of the jury, that he had received such notice ; that he was' unable to comply with the notice; that there was no book in the bank now that would show the items received during those months; that such a boob had been kept, but could not be found; that it was lost or destroyed and that he could not produce it. Seth F. Pratt denies that he ever agreed to extend the time of the payment of the note or that he ever received interest in advance on the note ; denies that he ever told Gordon that he had given time on the note, and thatec that will release you; ” he admits that he placed on the note the indorsement, “ Interest paid on within for thirty days from May 15, 1876,” and that it was erased by him. He says it was erased and included in one of the other indorsements. ce I think the way it was, the first indorsement was in settlement for board and the last indorsement included both, as I was taking meals with Gilbert.”

On re-cross examination he says that “ the last indorsement does not include the first. It was the second one received interest to July 15th, §1.40.” If this statement is true, then the erasure of the first indorsement would have been made at the time of the entry of the second indorsement. The copy of the indorsements on the copy of the note furnished Gordon contains all the indorsements except the last, with no erasure of the first one. We hold that the evidence of Gilbert, Gordon and the indorsement, as originally made upon the note by the cashier, fully sustains the plea, and that the jury were fully justified in disregarding the evidence for the plaintiff. The erasure of the indorsement and the non-production of its books required a more satisfactory explanation than the record in this case discloses. The instructions for appellee, although not strictly accurate in stating the law, could not have misled the jury. In the view we take of the case it was the only verdict the jury could have rendered, to have given substantial justice between the parties. In such case, as held in Creote v. Willey, 83, Ill. 444, the verdict will not be set aside.

Substantial justice has been done. The judgment is affirmed. Judgment affirmed.