Becker v. Hofsommer , 1914 Ill. App. LEXIS 940 ( 1914 )

Mr. Justice Higbee

delivered the opinion of the court.

This was a suit in assumpsit upon a promissory note, containing a special count upon the note and also the common counts for money had and received. A jury was waived and the ease heard by the court upon a plea of general issue. The issues were found for appellee and judgment entered against appellant for $906.25. The special count set forth that the note was executed by Ben A. Gundlach for the sum of $2,240, with interest at the rate of five per cent, per annum from date, was made payable to the order of appellee and was indorsed by appellant under the name and style of B. Hofsommer; that appellant, by his said indorsement, guaranteed the payment of said sum of money and promised the plaintiff to pay the same to him, according to the tenor and effect of said note, if said Gundlach should not so pay the same; that the note was due and payment had been demanded of said Gundlach and he had refused to pay the same or any part thereof and still refuses so to do, of which fact appellant had notice prior to the bringing of the suit. The copy of the note filed with the declaration is as follows:

“2,240.00. September 9, 1911.

On demand after date I promise to pay to the order of Joe Becker, Trustee, Twenty-two Hundred and Forty Dollars. For value received negotiable and payable without defalcation or discount and with interest from date at the rate of 5 per cent per annum.

Payable at Belleville, 111. Ben A. Gundlach.

No................... Due demand.

Endorsed: B. Hoesommer.”

The note sued on, which was admitted in evidence, had as indorsers the names of six other persons in addition to that of appellant and included among them the name of the signer of the note, Ben A. Gundlach. It also appeared from other indorsements on the note that each of said indorsers, except said Gundlach and appellant, had paid one-seventh of the amount due upon said note, leaving two-sevenths unpaid.

The proofs show that upon the date of the note sued upon, the seven indorsers, together with the maker, also an indorser, were indebted to the First National Bank of Bellville, Illinois, on a note of $2,000, and had been sued for the same, together with the interest due thereon; that William J. Reichert, one of the indorsers at the request of appellant and the other indorsers, procured the money from appellee to pay off the bank; that G-undlach thereupon made his note to appellee for the necessary sum, $2,240, and the same was indorsed by appellant and the others who had been on the banknote and delivered to appellee. Appellant complains that the court below committed error in admitting the note in evidence on account of a variance between the contract therein stated and the one set up in the special count and also in holding, as appellee claims, appellant whs a guarantor instead of an indorser. Appellee in his special count did not state that the note was payable at any particular place, but the note introduced in evidence showed the following notation below and at the left of the maker’s name: “Payable at Bellville, Ill. No.........Due demand,” and appellant for this reason insists that there was such a variance between the declaration and the note as to preclude its admission in evidence. He cites, in support of his contention, Lowe v. Bliss, 24 Ill. 168, and Childs v. Laflin, Butler & Co., 55 Ill. 156. In those cases, however, the place of payment was stated in the body of the notes, while in the note before us the place of payment is stated in the notation at the bottom of the note and below the signature and is not embodied in the contract. Such a marginal notation placed outside of the note proper cannot be considered as a part of the contract (Merritt v. Boyden & Son, 191 Ill. 136); and therefore the omission to state the place of payment in the special count was not a variance.

The evidence also shows conclusively that the note sued on was indorsed by appellant for his own benefit at the time of its execution and that the money which it represented was procured by Reichert at his request as well as at the request of the other indorsers. It was therefore not necessary that demand should have been made on the maker before suit was brought against appellant. R. S. 1911, ch. 98, par. 98. (J. & A. ¶ 7720).

It is immaterial that the special count charged that appellant was a guarantor of said note as the contract contained in the note was admissible under the common counts and appellee was plainly entitled to recover thereunder. Clarke v. Newton, 235 Ill. 530; Harrison v. Thackaberry, 248 Ill. 516. The defense in this case is purely technical and as no reason appears which requires the reversal of the. judgment appealed from, the same will be affirmed.

Judgment affirmed.