Hovorka v. Hemmer, 108 Ill. App. 443 (1903)

July 17, 1903 · Illinois Appellate Court

108 Ill. App. 443

John Hovorka et al. v. John G. Hemmer.

1. Bills and Notes—What is Not a Negotiable Instrument.—An instrument payable not at a fixed, specific date, but upon publication of an advertisement in a periodical, is not negotiable, being payable in a contingent, uncertain event.

2. Same—Negotiable Instrument Becomes Absolutely Void When Fraudulently Altered.—A forged negotiable instrument is absolutely void even in the hands of an innocent purchaser for value.

Bill to Cancel and Annul an Agreement.—Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge piresiding. Heard in the Branch Appellate Court at the October term, 1902.

Affirmed.

Opinion filed July 17, 1903.

Statement.—This is an appeal from a decree sustaining a demurrer to and dismissing for want of equity a bill filed by appellants.

These facts appear from the bill and an amendment thereto. Appellants signed the following agreement and delivered it to appellee:

“ Chicago, Sept. 5, 1901.

Please insert my advertisement in the Western Bowlers’ Journal, to occupy the space of 2 inches s. c. page, for the term of ____ months, for which I hereby agree to pay you or .your order the sum of $1.50 per issue, payable upon publication.”

The agreement was on a printed form with certain blank spaces to be filled out. At the time of delivery the blank space for the number of months was left a blank, it being the express understanding of the parties that it should not be filled, and that the advertisement might be discontinued by appellants at any time after its first publication upon notice to the appellee.

The advertisement was published for several weeks, appellants paying $1.50 for each publication; but becoming dissatisfied they notified appellant to discontinue. He, however, continued to publish and by threats of suit obtained payment from appellants several times. They gave him another notice which he again disregarded, and upon their refusal to pay he .sued them in justice’s court and recovered judgment by default against them for $9, which they paid. Afterward another suit for the recovery of $6 was brought against them by appellee, and upon the trial when he offered the above agreement in evidence, they learned for the first time that it had been materially altered by the insertion of the figures “36” before the word “months,” thus making it appear on the face of the instrument that the subscription was to be in force for thirty-six months. This insertion was made by appellee fraudulently and without authority from or ratification by appellants. Appellee threatens to continue publishing the advertisement for the full thirty-six months and to bring suit for every publication, if appellants refuse payment. Under the altered agreement they are still liable for thirty-one months at the rate of $6 a month.

The bill prays that the agreement be canceled and annulled and that appellee be restrained from bringing suit at law therein.

Charles F. Lowy, attorney for appellants; Winston & Munro, of counsel.

Church, McMurdy & Sherman, attorneys for appellee; William A. Bither, of counsel.

Mr. Justice Stein

delivered the opinion of the' court.

The facts of this case do not bring it within Siegel v. Trust and Savings Bank, 33 Ill. App. 225, 131 Ill. 509. The $1.50 agreed to be paid by appellants for each issue is payable, not at a fixed, specific date, but “ upon publication.” The instrument therefore was not negotiable, being payable in a contingent, uncertain event. Husband v. Epling, 81 Ill. 172.

But assuming it to be negotiable, there was still a defense to it at law, even in the hands of an innocent purchaser for value. The instrument became absolutely void by reason of the fraudulent alteration. Vannatta v. Lindley, 198 Ill. 40.

For the appellee it is further urged that the judgment of the justice in the case which went against appellants by default and which they subsequently paid is a conclusive adjudication of all questions now sought to be raised by them, including the one relating to the alleged forgery. Without definitely passing upon this contention, it is clear that either the judgment does so operate between the parties, or if it does not, then appellants have a good defense at law to any suit brought by appellee upon the instrument. In either case their bill can not be maintained, and was obnoxious to a demurrer.

The decree of the Superior Court will be affirmed.