Ligare v. Hayden

51 Ill. App. 69, 1893 Ill. App. LEXIS 515

Opinion

Mr. Justice Gary

delivered the opinion of the Court.

The appellee sued the appellant as maker of a promissory note, indorsed by the payee to the appellee, after it was due. Another note, made by the payee and guaranteed by the appellant, was then lying overdue and unpaid in a bank.

The appellant insists that his then liability as guarantor for the payee is in some way a defense to this note. It was no failure of consideration, nor was it a set-off, nor payment.

There was an implied promise by the payee to indemnify the appellant against the consequences of that guaranty, but until the appellant had been damnified, that implied promise could not be the basis of any defense to the note sued upon, whether it remained in the hands of the payee, or was indorsed by him after maturity. Brandt Sur. and Guar., S. 205; Israel v. Reynolds, 11 Ill. 218.

The statute, Sec. 12, Oh. 98, Negotiable Instruments, by which a set-off follows a note indorsed after maturity, has no effect here.

The judgment is affirmed.