Carr v. Bauer , 61 Ill. App. 504 ( 1895 )

Mr. Justice Harker

delivered the opinion op the Court:

This suit was commenced before a justice of the peace upon an instrument in writing as follows :

“ $70. Troy Grove, III., Dec. 8th, 1892.

One year after date we promise to pay to the order of Thos. Bauer or wife, seventy dollars, at Troy Grove, Ills., value received, with interest at six per cent per annum. If paid when due, interest to be deducted.

(Signed) Edward McLaughlin.

(Signed) Levi Carr.”

Upon appeal in the Circuit Court the plaintiffs introduced, upon the trial the paper instrument and rested.

The defendant moved to exclude it and to instruct the jury -to find for the defendant, for the reason that it was not a promissory note and did not establish a prima, faoie case. The court overruled the motion. The defendant introduced no evidence. The jury returned a verdict in favor of the plaintiffs for $79.23, the amount of principal and interest, and the court rendered judgment for that sum.

The sole contention of appellant is that the instrument sued on did not, by itself, make a prima facie case. In support of his position he cites the case of Musselman v. Oakes, 19 Ill. 81, and claims it is decisive. In that case the suit was upon an instrument purporting to be a promissory note, payable to Olive Fletcher or E. H. Oakes, in which Oakes alone sued. The Supreme Court held that as the instrument sued on was payable in the alternative to one of the two persons, it was not a promissory note and could not be sued on as such. The case is not “ on all fours ” with the one at bar. In that case only one of the persons named as payee sued. In this case both payees sue jointly.

We are of the opinion that an instrument of this kind is evidence of a joint contract with both of the payees, and that both are entitled to sue jointly thereon. The reasonable intendment is that the note was given to Bauer and his wife, and, as they have jointly asserted their right to sue, it is doing no violence to the intent of the instrument to hold that “ or ” means “ and.” We are supported in this view by Parker et al. v. Carson, 64 N. Car. 563; Knight v. Jones, 21 Mich. 161; Westgate v. Healy, 4 R. I. 523; Willoughby v. Willoughby, 5 N. H. 161. In Young et al. v. Ward, 21 Ill. 223, a case where the note sued on was made payable to a man or his wife, Judge Walker, in delivering the opinion of the court, said the suit could be maintained in the joint name of the payees.

We think the Circuit Court properly ruled and the judgment should be affirmed.