Commercial Loan & Trust Co. v. Mallers

Illinois Supreme Court

Commercial Loan & Trust Co. v. Mallers

86 N.E. 728, 237 Ill. 119

CourtIllinois Supreme Court

DecidedDecember 15, 1908

StatusPublished

Cited by2 cases

This text of 86 N.E. 728 (Commercial Loan & Trust Co. v. Mallers) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commercial Loan & Trust Co. v. Mallers, 86 N.E. 728, 237 Ill. 119 (Ill. 1908).

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Opinion

Mr. Justice Dunn

delivered the opinion of the court:

The appellant’s claims are (i) that the giving of the check and the cancellation and surrender of the old note at the time the renewal note was discounted amounted to a payment of the old note; (2) that the taking of $37.50 interest in advance at the time of the renewal constituted an extension of time of payment and released appellant, the surety; (3) that the surrender of the note, stamped “paid,” enabled the maker to present it to appellant, a surety, and thereby procure the surrender of collateral securities held for his indemnity.

As to the first claim, the Appellate Court has made a special finding that nothing has been paid on either of the notes, and that question of fact is not open to review in this court. Hecker v. Illinois Central Railroad Co. 231 Ill. 574.

As to the second claim, there was no plea setting up such extension of time, and the question here sought to be raised, if considered in the courts below, is not presented by the record.

As to the third claim, there was no plea setting up.such defense, and the trial court rightly held, at appellee’s request, that under the pleadings appellant could not avail himself of that claim. No cross-error was assigned in the Appellate Court on this holding and it is not now open to review.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

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Mr. Justice Dunn

delivered the opinion of the court:

The appellant’s claims are (i) that the giving of the check and the cancellation and surrender of the old note at the time the renewal note was discounted amounted to a payment of the old note; (2) that the taking of $37.50 interest in advance at the time of the renewal constituted an extension of time of payment and released appellant, the surety; (3) that the surrender of the note, stamped “paid,” enabled the maker to present it to appellant, a surety, and thereby procure the surrender of collateral securities held for his indemnity.

As to the first claim, the Appellate Court has made a special finding that nothing has been paid on either of the notes, and that question of fact is not open to review in this court. Hecker v. Illinois Central Railroad Co. 231 Ill. 574.

As to the second claim, there was no plea setting up such extension of time, and the question here sought to be raised, if considered in the courts below, is not presented by the record.

As to the third claim, there was no plea setting up.such defense, and the trial court rightly held, at appellee’s request, that under the pleadings appellant could not avail himself of that claim. No cross-error was assigned in the Appellate Court on this holding and it is not now open to review.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

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86 N.E. 728, 237 Ill. 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commercial-loan-trust-co-v-mallers-ill-1908.

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