Miller v. Chicago Heights Lumber Co. , 117 Ill. App. 468 ( 1904 )

Mr. Justice Smith

delivered the opinion of the court.

The question presented by this record is whether the declaration avers, and the evidence shows, a cause of action against the appellant or not. If, as contended by appellant, it is necessary to aver and prove that at the time of an oral acceptance of and promise to pay a written order there must be in the hands of the acceptor a fund with which to pay the amount specified in the order, neither the declaration, nor the proof, makes out a cause of action against appellant, for the existence of such fund or indebtedness is not alleged or proved. Miller Bros, as a copartnership, or appellant personally, owed Frink nothing at the time of the acceptance of the order, and appellant or his firm received no consideration from Frink or appellee for their promise. Appellee neither did any work nor paid any money upon the faith of the acceptance and promise; nor did appellee. give up any right or security against Frink. The original liability to appellee was not altered or affected in any way or to any extent by the acceptance and promise of appellant or Miller Bros. This promise was, therefore, clearly a promise not binding upon defendants for want of consideration. Ayres v. C. R. I. & P. R. Co., 52 Iowa 478; Plummer v. Lyman, 49 Me. 229; Pike v. Irwin, 1 Sand. (N. Y.) 14, and Wakefield v. Greenhood, 29 Cal. 600. These cases, and among others the case of Walton v. Mandeville, Dowling & Co., 56 Ia. 597, apparently a well considered case, hold that a verbal acceptance of an order is valid and enforceable only where the drawer has funds of the drawer in bis hands, so that by payment of the order he satisfies his own debt. In order, therefore, to show a valid obligation of the defendants it was incumbent upon the plaintiff to allege and prove, as a part of its original case, a consideration for the oral acceptance and promise relied upon. This it did not do. Proof of an oral acceptance by defendants did not make them parties to the order so that the consideration of the order became the consideration of this oral acceptance. The admission of the order in evidence did not tend to prove any consideration for the separate oral acceptance and promise to pay. Walton v. Mandeville, supra. The instruction of the court to find for the plaintiff was therefore erroneous.

If, however, the view be taken that it was not necessary for appellee to allege and prove in the first instance a consideration for the promise, but that it devolved upon defendants to show as a defense that they did n.ot owe Prink anything, and their promise was not to pay their own debt but that of another, it was error to sustain the demurrer to defendants’ additional pleas. These pleas w;ere good in substance. If the facts set up in the pleas could have been proven they would have constituted a complete defense to the action. Manley v. Geagan, 105 Mass. 445; Walton v. Mandeville, supra; Louisville, etc., Ry. Co. v. Caldwell, 98 Ind. 245; Morse v. Mass. National Bank, 1 Holmes, 209.

It is contended by counsel for appellee that the taking and retention of the order—the physical evidence of liability—constituted a consideration sufficient to support the •acceptance, and was proof thereof. We know of no principle of law upon which this contention can rest, and we" are of the opinion that it does not form, a consideration for the acceptance.

For the errors indicated, the judgment of the Circuit Court is reversed.

Reversed.