Gustafson v. Lindquist

351 N.E.2d 280, 40 Ill. App. 3d 152, 1976 Ill. App. LEXIS 2733
CourtAppellate Court of Illinois
DecidedJune 25, 1976
Docket62802
StatusPublished
Cited by10 cases

This text of 351 N.E.2d 280 (Gustafson v. Lindquist) 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
Gustafson v. Lindquist, 351 N.E.2d 280, 40 Ill. App. 3d 152, 1976 Ill. App. LEXIS 2733 (Ill. Ct. App. 1976).

Opinion

Mr. JUSTICE SULLIVAN

delivered the opinion of the court:

It is contended by defendant in this appeal that a judgment entered against him on a promissory note, after a bench trial, was against the manifest weight of the evidence in that a portion of the note sued upon was not supported by consideration. Three promissory notes are involved, and it appears from the record that plaintiff, an employee in a small machine shop owned by defendant and another person, loaned *1,000 to defendant to enable him to purchase his partner’s share of the business. In return, defendant gave plaintiff the first note for *1,000 at 6% interest. There are certain basic differences in the contentions of the parties with respect to the note. Plaintiff contends that it was executed in 1953 and that no interest was paid prior to July 1,1958, when defendant took the note back and gave plaintiff a second note for *1,750 payable on July 1, 1959, with interest at 6%. Defendant claims that the first note was executed in 1955 and that all interest was paid up until July 1, 1958. Accordingly, the testimony of the parties differed as to the reason for the *750 increase in the second note. According to defendant, the annual interest having been paid, the difference of *750 was a reward to plaintiff because he had been a good employee. Plaintiff, however, testified that no interest had been paid on the first note, which had been “repaid” by the issuance of the second note of *1,750. Thus, he contends part of the *750 increase was for interest and the remainder constituted a bonus.

On its due date, July 1, 1959, the second note was taken back by defendant, and the third note was given to plaintiff in the amount of *2,410 at 6% annual interest. Both parties agree that a portion of the *660 increase in the third note over the second was a bonus payment. They dispute, however, whether there was consideration for the bonus. Defendant says it was a gift to plaintiff for being a good employee; plaintiff claims it was payment of a bonus promised him in December 1958 if he continued to work the night shift until July 1,1959. He admitted that no specific figure had been agreed upon when the promise of a bonus was made and that the amount would depend upon business conditions. He continued on the night shift until July 1, 1959, and on that date was given the third note.

From 1959 through 1974, defendant made principal and interest payments totaling *3,160 on the third note. He contends that this amount satisfied the original debt of *1,000, the interest payments on the first *1,000 debt, and included the bonus amounts he had provided for in the second and third notes. Plaintiff, claiming that there was an outstanding balance of *1,648.31 1 on the *2,410 note, instituted this action and recovered judgment in the amount of *1,813.31 2 and costs.

Opinion

The issue presented for review is whether there was consideration for the increases in the second note over the first and in the third note over the second. In entering judgment in favor of plaintiff, the trial court implicitly found adequate consideration for these increases. Our standard for review is, therefore, to determine whether this finding was against the manifest weight of the evidence. Walden v. Bourn, 10 Ill. App. 3d 289, 296 N.E.2d 92; Chambers v. Shayne & Co., 32 Ill. App. 2d 16, 176 N.E.2d 645.

Defendant contends that these increases were without consideration, inasmuch as they were intended as gifts. Any such portion of the promissory notes would be unenforceable by plaintiff, because they would be merely a promise to make a gift in the future. (In re Estate of Ruebush, 53 Ill. App. 2d 54, 62, 202 N.E.2d 344; Annot., 161 A.L.R. 1372 (1946); see also Ill. Rev. Stat. 1975, ch. 26, par. 3 — 408.) However, the law provides a presumption that consideration was given for a valid negotiable instrument (Giberson v. Moore, 35 Ill. App. 2d 175, 182 N.E.2d 767), and because question is raised as to the validity of the notes here, it was thus defendant’s burden to overcome the presumption that consideration was given for them. To this end, he testified that the original note was made in 1955 and that he had paid all interest due. Plaintiff countered by testifying that the note $as made in 1953 and that no interest had been paid. The original note was not introduced at trial nor was any other evidence offered as to its date nor any evidence in support of defendant’s testimony that the interest had been paid. In view thereof, we believe a simple question of credibility was presented and we cannot say that the court’s implicit determination that the note was made in 1953 and that no interest was paid was against the manifest weight of the evidence.

Consulting the interest tables, in the record by stipulation of the parties, it is indicated that when the second note of *1,750 was issued, defendant owed plaintiff *1,338.23 in principal and interest on the original *1,000 loan, assuming it was made in 1953. Thus, as to the second note, we must determine whether there was adequate consideration for the difference of *411.77 which defendant claims was a gift and therefore without consideration. Plaintiff contends on appeal that this amount was in consideration of his forbearance from enforcing collection of the first note. While forbearance may provide consideration for a negotiable instrument (Pirie v. Carroll, 28 Ill. App. 2d 181, 171 N.E.2d 99), we note that the only evidence offered by plaintiff at trial on this point was his testimony that the second note “repaid” the first. We do not think that it can be implied from this bare assertion that forbearance was the basis for the new note. Thus, we believe the testimony of defendant to the effect that the difference in the amounts of the two notes was a gift was sufficient to overcome the presumption of consideration. We conclude therefore that this difference of *411.77 should not have been included in the determination of the award to plaintiff.

As to the *2,410 third note, both parties agree that the *660 increase over the second note was attributable to interest due plus a bonus. They dispute the amount of the interest, however. Defendant contends that he owed only one year’s interest of *60 3 on the original *1,000 note and that the remaining *600 was a bonus which he claims was a gift. Plaintiff’s position is that interest of *105 4 was owed on the second note and that the remaining *555 was the bonus amount.

By its own terms, the *1,750 note calls for payment of 6% interest per annum, and we feel that this fact when taken with plaintiff’s testimony that interest was to be paid on the full amount of that note, was sufficient to justify the finding of the trial court that the interest was to be computed on the face value of the second note rather than on the amount of the first note.

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Bluebook (online)
351 N.E.2d 280, 40 Ill. App. 3d 152, 1976 Ill. App. LEXIS 2733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gustafson-v-lindquist-illappct-1976.