Shaw v. Camp , 61 Ill. App. 62 ( 1895 )

Mr. Justice Wall

deliveeed the opinion of the Court.

This was a claim filed in the County Court against the estate of Edward Swaney, deceased. It was removed by appeal to the Circuit Court, where, upon trial by jury, there was a finding for the claimant for $852.50, upon which judgment was duly entered after a motion for a new trial had been overruled.

The claim was based upon an instrument in writing signed by the deceased as follows:

“ $750. ' Bemeht, Ill., December 27, 1890.

After my death I promise to pay E. Hanson Camp or order $750 without interest, at-per cent per annum from date, value received,” with a power of attorney to confess judgment in the ordinary form.

It was proved that the deceased handed this paper to Wm. M. Camp, the brother of the claimant, with instruction to give it to the claimant. He, William M., took it to the bank and placed it among some papers of the claimant which were in his keeping.

These papers of the claimant were kept in a large envelope in a safe deposit box to which W illiam M. had the sole key. The deceased had no papers in that box.

This instrument was not actually delivered to" the hands of the claimant until after the death of the maker and there is no proof that he knew that such a paper was in existence prior to such delivery to him.

At the time the instrument was so received by Wm. M. Camp, the claimant was in another State, and did not return until after the death of the maker. We are of opinion:

1st. The instrument was in form a promissory note. The only objection urged in this respect is that it is not payable at a time certain. It is conceded that if payable at the death of the maker, or a certain number of days thereafter, it would be sufficient—but that the phrase “ after my death ” is wholly indefinite as a time of payment. The death of the person ivho signed the paper was an event sure to occur. Hence, according to the authorities, a note payable then is good. It is no more indefinite in a legal sense to make a note due after the death of the signer or another person, than after a fixed day, e. g., July 1, 1900—and it would mature immediately upon the happening of the event.

2d. The note was well delivered. It was handed by the maker to a third person, with instruction to deliver to the payee.

This person happened to be a brother of the payee, and had in his hands other papers belonging to him for safe keeping during his absence. The note was placed with those papers for the payee.

It was so delivered without condition to the third person, and acceptance by the payee will be presumed.

The delivery was complete. Daniel on Negotiable Instruments, Vol. 1, Sec. 63; Thomson v. Candor, 60 Ill. 244; Gordon v. Adams, 127 Ill. 223; Am. & Eng. Ency., Vol. 8, p. 13-18.

3d. The instrument being in form a promissory note, imports a consideration.

Has the legal presumption in this respect been overcome by proof ? Yery clearly not, as we think. Counsel for appellant say the transaction was merely a gift.

This position rests upon the testimony of a witness, to the effect that the deceased said to him he wanted to make some provision for appellee, and asked witness whether it could best be done by note or by will.

We are of opinion that this conversation, which was objected to, should have been excluded. The declaration of the maker of the note, out of the presence of the- payee, ought not to be offered in defense of the note. But if it were competent, and assuming that it referred to the matter now under investigation, it would not follow that there was no consideration for the proposed provision.

There may have been the most ample consideration. There is no reason why a man who is under pecuniary obligation to another, may not, if the other is satisfied, make by his will special provision for a discharge of the debt; nor is there any reason why he may not manifest the obligation by a written promise to pay at his death.

While this transaction may have been a mere gift, we are bound to say there is no proof to that effect, and the consideration imported by the form of the instrument is in no wise attacked by the proof.

In the view we thus take of the case, the claimant was entitled to judgment, and it is not necessary to consider the objections made to the instructions.

When there is no substantial conflict in the proof, and when the finding is clearly right on the merits, it should not be set aside because of error in the instructions. Judgment •affirmed.