Berghoff v. Cummings , 1922 Ill. App. LEXIS 138 ( 1922 )

Mr. Presiding Justice Gridley

delivered the opinion of the court.

Counsel for defendant urge, as grounds for a reversal of the judgment, that there is no evidence that John J. Cummings is deceased; that no profert of letters testamentary issued to defendant was made; and that it does not sufficiently appear that defendant is the executor of said estate of John J. Cummings. There is no merit in any of these contentions. It is alleged in plaintiff’s statement of claim that John J. Cummings “has lately died” and it is admitted in defendant’s affidavit of merits that said Cummings is “now deceased.” In plaintiff’s pleading the defendant, Walter J. Cummings, is described and sued as “executor of the estate of John J. Cummings, deceased,” and it is alleged that defendant was appointed executor by the probate court of Cook county. While it is doubtless more correct to say “executor of the last will,” etc., defendant in his affidavit of merits does not deny that he is John J. Cummings ’ executor, or that he was appointed as such by said probate court; and when he entered his appearance in the cause, it was as “executor of the estate of John J. Cummings, deceased.” If he was not such executor he should have set up that fact as a defense. (24 Corpus Juris, p. 752, sec. 1858.)

Counsel further contend that plaintiff’s statement of claim fails to state a cause' of action. The argument is that it is not sufficient for him only to allege that he is the “owner” of the note, but that he should also allege title by indorsement and before maturity. A copy of the note sued on was attached to plaintiff’s statement of claim and made a part thereof. The note was complete and regular upon its face and had the indorsement of the payee thereon; and presumably plaintiff was a holder in due course. Section 59 of our Negotiable Instruments Law, in force July 1, 1907 [Cahill’s Ill. St. ch. 98, ¶ 79], provides that “every holder; is deemed prima facie to be a holder in due course.” The statement of claim sufficiently apprised defendant of the nature of plaintiff’s claim (Isbitz v. Chicago City Ry. Co., 192 Ill. App. 487, 495). The burden of showing that plaintiff was not a holder in due course, as defined in section 52 of said Negotiable Instruments Law [Cahill’s Ill. St. ch. 98, ¶ 72], was upon the defendant. But the uncontradicted testimony discloses that plaintiff became the owner and holder of the note by indorsement and delivery by Alfred C. Berghoff a few days after its date. Furthermore, the claimed defect in the statement of claim, if any there was, is cured by the verdict. (1 Chitty’s Pleading, 16th Am. Ed., page 705; Kelleher v. Chicago City Ry. Co., 256 Ill. 454, 456.)

Counsel further contend that the court erred in instructing the jury to return a verdict in favor of plaintiff for the amount of the note and accrued interest. As we understand counsels’ arguments they are (1) that the testimony of Walter J. Cummings, heard by the court and not in the presence of the jury, to the effect that at the time the note was executed there was a contemporaneous verbal agreement between the maker and the payee that the note should only be paid in the event a sale of certain real estate was consummated, should have been submitted to the jury; and (2) that all the testimony, heard by the court and not in the presence of the jury, on the question of what notice or knowledge plaintiff had at the time the note was negotiated to him of any infirmity in the instrument or defect in the title of Alfred C. Berghoff, should have been submitted to the jury. The court did not err in refusing to submit to the jury the testimony of Walter J. Cummings as to said verbal agreement, because the alleged verbal agreement was inconsistent with the note and the note could not be thus varied or contradicted, especially as against an indorsee before maturity. (Murchie v. Peck Bros. & Co., 160 Ill. 175, 177; Mumford v. Tolman, 157 Ill. 258, 265.) And the uncontradicted testimony of the plaintiff was that at the time the note was negotiated to him he took it in good faith and for value and had no notice of any infirmity in the instrument or defect in the title of Alfred C. Berghoff, who negotiated it to him. Clearly he was a holder in due course under the provisions of sections 52 and 56 of the Negotiable Instruments Law [Cahill’s Ill. St. ch. 98, ¶¶ 72, 76], and there was no disputed fact to be submitted to the jury. In our opinion the court was fully warranted in instructing the jury to return a verdict for the amount of plaintiff’s claim. And even had the court admitted in evidence before the jury the various exhibits offered by defendant, and which the court finally refused to admit, the same instruction would have been justified. They were irrelevant and immaterial to the issues involved.

Counsel further contend that the trial court erred in entering its order of June 18, 1921, whereby the judgment of October 26, 1920, erroneous in form in that the amount was not directed to be paid by the defendant as executor 11 in due course of administration” as it should have beén, was attempted to be corrected. Under the facts disclosed we regard the form of the judgment as originally entered as a mere error or misprision of the clerk, which form of judgment the court had power even after the expiration of the term to properly amend. Even if the judgment had not been corrected in the trial court, /this Appellate Court would have been justified in correcting it. (McNulta v. Ensch, 134 Ill. 46, 56; Doyle v. Doyle, 257 Ill. 229, 237.)

Finding no reversible error in the record the judgment as corrected of the municipal court is affirmed.

Affirmed.

Morrill, J., concurs.

Barnes, J., took no part in the decision of this case.