Kellogg v. Hale

190 Ill. App. 15, 1914 Ill. App. LEXIS 57

Opinion

Mr. Justice Baker

delivered the opinion of the court.

There is in the record no evidence of any fraud or circumvention in obtaining defendant to make the note. He knew that he was making a promissory note and only claims that false representations were made to him as to the consideration of the note, and that in fact it was given without consideration. Fraud must relate to the execution of the note and not to the consideration on which it is based. The fraud must consist of some trick or device that induces the giving of one kind of an instrument under the belief of the maker that he is giving one of a different kind. Gray v. Goode, 72 Ill. App. 504.

The burden was on the defendants to show that the note was without consideration and that plaintiff was not an innocent holder thereof for value and before maturity.

The giving of the instructions above quoted constitute reversible error, and for such error the judgment is reversed and the cause remanded.

Reversed and remanded.