Clauser v. Stone

29 Ill. 114

• Court: Illinois Supreme Court
• Decided: April 15, 1862
• Status: Published

Opinion

Breese, J.

The general rule is, unquestionably, as stated by the appellee’s counsel, that objections on the trial, to a paper or other evidence, must be specially pointed out, so that they may be obviated if possible. But this rule applies only to cases where the objection can be removed by evidence, or by the act of the party under the sanction of the court, or by the action of the court itself. Jackson v. Van Shaick et al., 5 Cowen, 123; Harmon v. Thornton, 2 Scam. 355.

The bill of exceptions in the case, shows the note declared on, was made payable to the order of B. L. Merrill & Co., and indorsed, “ Pay C. H. Rupert & Co. or order, for collection.” The suit is brought by George H. Stone, and in his name, and on his own showing, the note was the property of Rupert & Co. It would hardly be allowed on the trial, that Rupert & Co. should indorse the note to the plaintiff. That would not obviate the difficulty, for the plaintiff must show he had title to the note at the time the suit was brought. This, then, was an objection which could not have been obviated, if specifically pointed out. The cases of Porter v. Cushman, 19 Ill. 572, Moore v. Maple, 23 Ill. 343, and Dix v. Mer. Ins. Co., 22 Ill. 272, do not materially differ from this in principle.

As to the objection, that the note is not a promissory note under our statute, or by the law merchant, because it is payable “ with exchange,” and therefore like the case of Lowe v. Bliss, 24 Ill. 168. In that case, the note was payable “ with current exchange on Hew York”—in this, simply “ with exchange,” which are unmeaning, and can be rejected as surplusage. They certainly do not make the note void.

The judgment is reversed, and the cause remanded.

Judgment reversed.