Leon v. McIntyre , 88 Ill. App. 349 ( 1900 )

Mr. Presiding Justice Sears

delivered the opinion of the court.

But two questions are presented upon this appeal, viz.: First, was the payment of the principal note by appellant to Griggs operative asa payment to the minor, appellee, or to his guardian; and second, is appellee estopped by reason of any laches upon his part, or upon the part of his guardian, from now disputing the effect of such payment. We are of opinion that each question must be determined in favor of the decree. There is no evidence in this record which would warrant the conclusion that appellee or his guardian ever empowered Griggs to act for him in the accepting of payment of the money due upon the note. The prior course of business between these parties did not tend to such conclusion. Appellant had, it is true, been in the habit of sending the money to Griggs to pay interest, but the guardian of appellee had never left any coupon nor the principal note with Griggs for any such purpose. The coupons were given to Griggs only in exchange for the money. The principal note was merely handed to him for indorsement of payments, and that in the immediate presence of the business agent of the guardian, who kept the note, bringing it to Griggs, and taking it away again at once after the indorsement was made. The terms of the transaction indicate no such authority in Griggs. That he was made trustee in the trust deed is of no consequence in this behalf. This gave him no right or authority to receive payment of the debt secured by the trust deed. The fact that the note and interest coupons were made payable at Griggs’ office can not control, for by the very terms of the note it was payable to John L. McIntyre, the minor. Appellant knew by his own note that he was indebted to this person and not to Griggs. What authoritjq then, can Griggs be said to have had to bind the minor or his guardian in accepting payment, or what right had appellant to pay to Griggs without production of the note which he had made payable to the order of the minor ?

We are of opinion that these questions are settled adversely to appellant by the decision of this court and the Supreme Court in Stockton v. Fortune, 82 Ill. App. 272, affirmed in 182 Ill. 154.

There remains, then, only the question of laches.

In March, 1894, nearly nine years after the payment to Griggs, it was, for the first time, learned by appellee, or his legal representative, that the money had been given by appellant to Griggs. In the meantime, by a system of fictitious extensions of the time of payment, and by himself paying the interest from time to time, Griggs had prevented a discovery of his use of the money given him by appellant.

In March, 1894, an attorney of the guardian of appellee attempted to see Leon, appellant, and left some note or card, requesting him to call upon the attorney. This notice appellant testified that he had never received. Ho other notice was given until October,-1894, some seven months later, when appellant learned through the attorney the fact that Griggs had embezzled the fund left with him to pay the note and that the supposed note and trust deed delivered to appellant were forgeries.

The question presented is, does the lapse of this period of seven months, during which Griggs died, without notice to appellant of the discovery of appellee’s attorney that a fraud had been practiced upon appellant, operate to bar any right of action by appellee upon the note.

When the notice was given to appellant upon October 9, 1894, appellee was still under age. This suit was begun by him after attaining his majority.

The decisions as to what will constitute such laches as will bar relief in cases like this, are based upon the peculiar facts of each case, and do not and could not declare any rule by which any certain measurement in period of time can be made.- Whether the question be treated as one of laches to bar relief, or of ratification of the action of Griggs, in neither event are we prepared to hold that the conclusion reached by the master in chancery and by the learned chancellor, is unwarranted.

We are of opinion that the payment of the §1,500 by Griggs to the attorney of the guardian after the fraud was discovered, is of no controlling importance. This money was thus applied without the assent of Griggs and against his protest. There is no evidence whatever of any agreement of forbearance as to the balance of the moneys due upon the note.

If, as counsel for appellant insists, the loss here consequent upon the wrong of a third party should be imposed upon the one of the litigants who is the more to be charged with negligence causing that loss, the conclusion must be in support of the decree. Appellant negligently intrusted his money to Griggs for the purpose of paying a note which he, appellant, had made payable to John L. McIntyre, and the money was thus given without a production of the note itself. The fact that a fictitious and forged note and trust deed were imposed upon appellant does not assist him. An examination of what purported to be his own signature should have protected him. The note was not even an exact copy of the genuine note. An examination of the book and page of purported record of the forged trust deed upon it and in the release, or a comparison with abstract of title or the records, would have disclosed the fraud. Appellee, on the contrary, is chargeable with no negligence Avhieh made the fraud possible. His representative never appears to have trusted Griggs with any paper evidencing the debt. When payments of interest Avere received, the note was not left in Griggs’ hands beyond the moment of time necessary for the indorsement, and that only in the presence of the representative of appellee.

So far as any question arises as to negligence, of either of these two litigants, by which it became possible for Griggs to accomplish the fraud, it must be said as in Keohane v. Smith, 97 Ill. 156:

“ Equity will not postpone the interests of one who stands fair, and who has omitted no duty devolving on him, to the interest of one Avhose negligence made it possible for loss to occur.”

Ho question is raised as to the propriety of the decree in disposing of the rights of other litigants, and the sole question is as to any liability of appellant upon his note. We are of opinion that the decree determined that question properly. The decree is affirmed..