Board v. O'Donovan

Me. Presiding J dstice Freeman

delivered the opinion of the court.

Appellant is sued as guarantor of a promissory note. A motion for continuance was made, supported by affidavit, which set forth as one of his defenses that he placed his name on said note without any good or valuable consideration therefor; that one Ludwig, a material witness, was absent on account of sickness; that if present said witness would testify that the payee of the note at the time of the making of the loan stated that he was satisfied with the note, and did not desire any indorsement thereon or other security; that the signature of appellant was not placed on the note at the request of the payee; that the money for which the note was given was advanced and delivered to the maker “ a day or longer before said Board placed his name upon the note given for said loan.”

We are told that the court erred in overruling the motion for a continuance, based on the affidavit.

It is conceded by appellant’s counsel that where a stranger indorses a note in blank, in the absence of an agreement or understanding to the contrary between the parties, the law raises an implied promise of guaranty. But the plea, it is said, sets up an agreement which negatives such implied promise, and the testimony of the absent witness would have tended to establish such agreement.

The plea states that the consideration for the note was money loaned by the payee to the Lake Shore Foundry Co., the maker, which was received by said maker before the note was given, with an agreement that the payee would take the note without the indorsement of appellant, and that appellant afterward indorsed the'note without consideration.

The testimony of the absent witness, if in accord with the affidavit for continuance, would not have tended to sustain the material averments of the plea, namely, an agreement by the payee to accept the note without indorsement, that the indorsement was without consideration, and that it was placed upon the back of the note at a time subsequent to the execution. It is said the witness would testify that the money was “ loaned, advanced and delivered * * * a day or longer before said Board placed his name upon the note.” That may very well be, and yet the execution of the note by the maker and the indorsement by appellant have occurred as parts of one and the same transaction. The plea states that the money was received by the foundry company before the note itself was given.

The affidavit was not sufficient. All intendments must be taken against the affidavit, and it can not be assumed that the witness would testify to anything more than the affidavit states. Evans v. Marden, 54 Ill. App. 291-294; Slate v. Eisenmeyer, 94 Ill. 96-101.

In the absence of evidence tending to show when the indorsement by a third party was made, the presumption is that it was simultaneous with the execution and delivery of the note and for a consideration. Grier v. Cable, 45 Ill. App. 405; Kankakee Coal Co. v. Crane Bros. Mfg. Co., 138 Ill. 207, 208; Joslyn v. Collinson, 26 Ill. 62, 73 Ill. 343 and many other cases.

The judgment of the Superior Court is affirmed.