Bailey, J.
By the second instruction given to the jury at the request of the plaintiff, the court below held that an agreement to pay interest at the rate of ten per cent, per annum upon an open account was legal and valid. This was clearly erroneous. Section 4, chapter 74, of the Revised Statutes of 1874, unlike the statute previously in force, limited the cases where parties might agree upon a rate of interest in excess of six per cent, per annum to written contracts.
But the evidence tends very strongly to show that the indebtedness from the defendant to Uchtmann was put in two notes, one for $3001.22, dated October 5, 1875, and one for $350, dated July 3,1876. This is proved by the memoranda on the defendant’s books of account in Uchtmann’s handwriting; by the admissions of Uchtmann to witness, George A. Edler, that he had settled his accounts with the defendant and taken two notes for about these amounts; and by the testimony of the same witness, that in November or December, 1879, lie found in the defendant’s possession two notes for those precise amounts, canceled in Uchtmann’s handwriting. And upon this question there is no conflict in the evidence." No witness has testified that such notes were not given, and no fact or circumstance appears in evidence which even throws a doubt upon their execution. The mere fact that some four or five years later, after the payee was dead, his executor failed to find any such notes among his intestate’s papers and effects, is manifestly insufficient to raise an inference that no such notes were given.
At the trial, both parties p r oceded upon the theory that notes for the amounts above stated were once in existence, and both gave evidence tending to prove that fact. Such being the state of the evidence, it is plain that the present appeal must be decided upon the assumption that, at the dates above mentioned, notes for the entire amount of the defendant’s indebtedness on open account, were executed and delivered by him to Uchtmann. These notes not being produced, and plaintiff not having been able to find them, or to produce any evidence tending to show their whereabouts, or what has become of them, his recovery must be had, if at all, as upon lost notes.
Ordinarily, the maker of a negotiable instrument is entitled to its production and surrender on payment; but, as this is physically impossible where the instrument has been destroyed or lost, the owner is entitled to payment upon tendering a sufficient indemnity, in some form, against any further claim upon the lost instrument by a finder or holder. But there are some cases where the maker can run no risk of being compelled to pay the note a second time, and where consequently, the owner may bring suit and recover without'giving indemnity. These,- under our statute, are, where the note is not -payable to bearer and has not been indorsed, or has been indorsed specially; where it is clearly shown to have been destroyed; where it has been traced to the defendant’s custody; and, where it is shown that the defendant is protected by the statute of limitations against future liability. 2 Daniel on Negotiable Instruments, § "1,480, et seq. See, also, Rogers v. Miller et al. 4 Scam. 333; McMillan v. Bethold et al. 35 Ill. 250. But, before the owner of a lost negotiable note can recover, either on the note itself, or on the original consideration of the note, he must either give the defendant indemnity, or prove the existence of some one of the foregoing exceptions.
No proof -having been made of the - contents of the notes in question, we must assume that the verdict was rendered upon their original consideration, under the common counts. But the liability to being compelled to pay the same indebtedness a second time was in no way changed by the mode of the recovery, and the plaintiff did not thereby escape the necessity of making such proof as would demonstrate the non-existence of such liability. There was no proof whatever that the notes had been destroyed, or that they were not indorsed by Uchtmann in his life-time, or even put in circulation by him, except the evidence of George A. Edler, who testified to having found them in the defendant’s possession, canceled by Uchtmann, and if that evidence is to be believed, it established beyond controversy the defense of payment. The same evidence is all the proof there was tending to trace the notes into'the defendant’s hands, and clearly the statute of limitations has not yet become a protection to the defendant against future liability. It may also be remarked that the plaintiff* gave no evidence of even the loss of the notes beyond the mere fact, that after Uchtmann’s death, His administrator was unable to find them among his papers. Such being the State of the record, we are of the opinion that, upon the plaintiff’s own evidence, the verdict can not be sustained.
In the light of what we have said, it is plain that the first Instruction given to the jury at the plaintiff’s request, did not state the law correctly. All it required in order to enable the plaintiff to recover on the notes in question as lost notes, was, proof that the notes had been lost, and that they had not been transferred by ITchtmann. They may not have been transferred, that is, actually negotiated or put in circulation by him, still if he, as payee, had indorsed them, or, using the language of the Supreme Court in McMillan v. Bethold et al. supra, if the notes “ had been adapted to circulation by indorsement,” he would not have been entitled to recover without first giving the defendant proper indemnity.
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Bailey, J.
By the second instruction given to the jury at the request of the plaintiff, the court below held that an agreement to pay interest at the rate of ten per cent, per annum upon an open account was legal and valid. This was clearly erroneous. Section 4, chapter 74, of the Revised Statutes of 1874, unlike the statute previously in force, limited the cases where parties might agree upon a rate of interest in excess of six per cent, per annum to written contracts.
But the evidence tends very strongly to show that the indebtedness from the defendant to Uchtmann was put in two notes, one for $3001.22, dated October 5, 1875, and one for $350, dated July 3,1876. This is proved by the memoranda on the defendant’s books of account in Uchtmann’s handwriting; by the admissions of Uchtmann to witness, George A. Edler, that he had settled his accounts with the defendant and taken two notes for about these amounts; and by the testimony of the same witness, that in November or December, 1879, lie found in the defendant’s possession two notes for those precise amounts, canceled in Uchtmann’s handwriting. And upon this question there is no conflict in the evidence." No witness has testified that such notes were not given, and no fact or circumstance appears in evidence which even throws a doubt upon their execution. The mere fact that some four or five years later, after the payee was dead, his executor failed to find any such notes among his intestate’s papers and effects, is manifestly insufficient to raise an inference that no such notes were given.
At the trial, both parties p r oceded upon the theory that notes for the amounts above stated were once in existence, and both gave evidence tending to prove that fact. Such being the state of the evidence, it is plain that the present appeal must be decided upon the assumption that, at the dates above mentioned, notes for the entire amount of the defendant’s indebtedness on open account, were executed and delivered by him to Uchtmann. These notes not being produced, and plaintiff not having been able to find them, or to produce any evidence tending to show their whereabouts, or what has become of them, his recovery must be had, if at all, as upon lost notes.
Ordinarily, the maker of a negotiable instrument is entitled to its production and surrender on payment; but, as this is physically impossible where the instrument has been destroyed or lost, the owner is entitled to payment upon tendering a sufficient indemnity, in some form, against any further claim upon the lost instrument by a finder or holder. But there are some cases where the maker can run no risk of being compelled to pay the note a second time, and where consequently, the owner may bring suit and recover without'giving indemnity. These,- under our statute, are, where the note is not -payable to bearer and has not been indorsed, or has been indorsed specially; where it is clearly shown to have been destroyed; where it has been traced to the defendant’s custody; and, where it is shown that the defendant is protected by the statute of limitations against future liability. 2 Daniel on Negotiable Instruments, § "1,480, et seq. See, also, Rogers v. Miller et al. 4 Scam. 333; McMillan v. Bethold et al. 35 Ill. 250. But, before the owner of a lost negotiable note can recover, either on the note itself, or on the original consideration of the note, he must either give the defendant indemnity, or prove the existence of some one of the foregoing exceptions.
No proof -having been made of the - contents of the notes in question, we must assume that the verdict was rendered upon their original consideration, under the common counts. But the liability to being compelled to pay the same indebtedness a second time was in no way changed by the mode of the recovery, and the plaintiff did not thereby escape the necessity of making such proof as would demonstrate the non-existence of such liability. There was no proof whatever that the notes had been destroyed, or that they were not indorsed by Uchtmann in his life-time, or even put in circulation by him, except the evidence of George A. Edler, who testified to having found them in the defendant’s possession, canceled by Uchtmann, and if that evidence is to be believed, it established beyond controversy the defense of payment. The same evidence is all the proof there was tending to trace the notes into'the defendant’s hands, and clearly the statute of limitations has not yet become a protection to the defendant against future liability. It may also be remarked that the plaintiff* gave no evidence of even the loss of the notes beyond the mere fact, that after Uchtmann’s death, His administrator was unable to find them among his papers. Such being the State of the record, we are of the opinion that, upon the plaintiff’s own evidence, the verdict can not be sustained.
In the light of what we have said, it is plain that the first Instruction given to the jury at the plaintiff’s request, did not state the law correctly. All it required in order to enable the plaintiff to recover on the notes in question as lost notes, was, proof that the notes had been lost, and that they had not been transferred by ITchtmann. They may not have been transferred, that is, actually negotiated or put in circulation by him, still if he, as payee, had indorsed them, or, using the language of the Supreme Court in McMillan v. Bethold et al. supra, if the notes “ had been adapted to circulation by indorsement,” he would not have been entitled to recover without first giving the defendant proper indemnity.
But we think the jury in finding against the defendant on the issue of payment, found against the manifest weight of the evidence. George A. Edler, as we have already stated, testified that, on looking through the defendant’s papers some three or four years after the notes were given, he found the very notes now in suit in the defendant’s possession, with the statement that they were paid in full, written across their face in Uchtmann’s handwriting, and signed by him. Frederick C. Edler testified to a conversation with Uchtmann which took place from four to six weeks before his death, in which he desired the witness to get his father to pay the balance he then owed him, consisting of the two small notes, referring, it would seem, to the $250 and $200 notes about which there is no dispute. Evidence was also given showing the conversion by the defendant of nearly all his stock of lumber into cash at or about the time he claims to have paid the notes, thus showing him to have been in possession of the means for making such payment. This evidence was not disputed by any other evidence showing or tending to show a contrary state of facts, so that the verdict of the jury could have been reached only by entirely disregarding and rejecting the testimony of these two witnesses. There was no attempt by any direct means to impeach their testimony, nor are we able to perceive any material self-contradiction or any innate improbability in their statements. A justification of the jury in disbelieving them is sought to be found in the fact that they are the defendant’s sons, and presumably biased in his favor; that in the course of their examination they displayed some degree of eagerness to testify favorably to him; and that on a former trial of this case, neither of them was produced as a witness. We have examined the record with care so far as it bears upon these various matters, and fail to find anything from which the jury would be warranted in holding the testimony of these witnesses to be wholly untruthful. Had there been other witnesses disputing them, or swearing to an opposite state of facts, so as to. submit to the jury a question of conflicting testimony, the case would have presented a different aspect. Juries must be governed by the evidence as it is given, bringing to its consideration, and to the determining of the facts which it tends to prove, a candid and dispassionate judgment; and they are not at liberty to reject the testimony of any witness from mere caprice, or because they may prefer the result which in that way becomes open to them, nor upon any other ground which is not sufficient to satisfy a fair and candid mind, when viewing the subject in the light of all the facts disclosed by the evidence, that the testimony of such witness is not entitled to belief.
For the reasons above stated, the judgment will be reversed and the cause remanded.
Judgment reversed.