McAuliff v. Reuter , 61 Ill. App. 32 ( 1895 )

Mr. Presiding Justice Gary

delivered the opinion of the Court.

July 9,1890, the appellant, for a loan of money, made his promissory note, payable three years thereafter to his own order, and indorsed and delivered it, with a trust*deed to secure the same, executed by himself and wife, to Conrad L. Mehoff, who was named in the deed as trustee, and who was a banker.

July 24, 1890, the appellee bought the note of Mehoff. Thereafter the appellant, during the years 1890-1-2, paid to Mehoff, in a savings bank account drawing interest at four per cent, sums of money aggregating $900, undoubtedly believing that they would be applied as payments on the note at maturity, but taking no precautions that they should be applied.

The appellant is without education, and confided in Mehoff, who has failed.

In legal effect the note made by the appelant to his own order, and by him indorsed in blank, was payable to the holder (Hall v. Burton, 29 Ill. 321), and. so there was no variance from the fact in alleging in the bill to foreclose that the indebtedness was to the appellee; but in alleging that the appellant and his wife made the note, which was made only by the appellant, there was variance.

Had that variance been specifically pointed out in the objections before the master or. exceptions before the court, the bill would doubtless have been amended at once. No such objections having been specifically made, and the variance being of no consequence as to the result, it must now be disregarded. There is no variance between the bill and the decree as in Robinson v. Robinson, 50 Ill. App. 414, and cases there cited.

There is no help for the appellant. He trusted his money to Niehoff in a savings account, under the promise by Nielioff—implied, if not expressed—that when the note was due the deposits should be applied toward the satisfaction of the note, but that raises no equity against the appellee, and the decree must be affirmed.