Dewitt County National Bank v. Nixon

Appellate Court of Illinois

Dewitt County National Bank v. Nixon

25 Ill. App. 158, 1886 Ill. App. LEXIS 547

DecidedJune 14, 1887

StatusPublished

This text of 25 Ill. App. 158 (Dewitt County National Bank v. Nixon) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dewitt County National Bank v. Nixon, 25 Ill. App. 158, 1886 Ill. App. LEXIS 547 (Ill. Ct. App. 1887).

Pincite

Opinion

Pleasants, P. J.

Plaintiff in error brought this suit against the defendants, who were co-partners, on an alleged guaranty of a note made by Cresmer Brothers and Danison for $1,273.50. Their firm name only was indorsed, and the president of the bank wrote the guaranty over it. Nixon, the partner who so indorsed it, testified that the agreement was to be responsible only in case the money could not be made out of the makers, and for that reason he refused the request to sign it as security. It further appears that the president wrote to the defendants expressing a willingness to extend the time of payment to the makers, if they, the defendants, as “indorsers,” would consent. And although the use of the term “indorsers” is, perhaps, sufficiently explained as being the language of the clerk who wrote by his authority as to the substance, the requirement of their consent is not, and indicates that he did not understand they were guarantors, whose consent would not be necessary in order to preserve their liability. The president denied all recollection of the conversation related by Nixon, but the latter was clear and positive about it, and it was for the jury to find the fact upon this conflict of evidence. Clear proof is required to overcome the presumption from a b’ank indorsement by a third party that a guaranty was intended, yet we can not say it was not so found and properly found. There being no complaint except of the verdict, the judgment for defendants will be affirmed.

Judgment affirmed.

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Pleasants, P. J.

Plaintiff in error brought this suit against the defendants, who were co-partners, on an alleged guaranty of a note made by Cresmer Brothers and Danison for $1,273.50. Their firm name only was indorsed, and the president of the bank wrote the guaranty over it. Nixon, the partner who so indorsed it, testified that the agreement was to be responsible only in case the money could not be made out of the makers, and for that reason he refused the request to sign it as security. It further appears that the president wrote to the defendants expressing a willingness to extend the time of payment to the makers, if they, the defendants, as “indorsers,” would consent. And although the use of the term “indorsers” is, perhaps, sufficiently explained as being the language of the clerk who wrote by his authority as to the substance, the requirement of their consent is not, and indicates that he did not understand they were guarantors, whose consent would not be necessary in order to preserve their liability. The president denied all recollection of the conversation related by Nixon, but the latter was clear and positive about it, and it was for the jury to find the fact upon this conflict of evidence. Clear proof is required to overcome the presumption from a b’ank indorsement by a third party that a guaranty was intended, yet we can not say it was not so found and properly found. There being no complaint except of the verdict, the judgment for defendants will be affirmed.

Judgment affirmed.

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Bluebook (online)

25 Ill. App. 158, 1886 Ill. App. LEXIS 547, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dewitt-county-national-bank-v-nixon-illappct-1887.