This is an action of assumpsit brought by appellee against appellants as indorsers to him of a promissory note made by Valentine Sigerte and Jacob C. Fults, June 5, 1883, for $115, due twelve months after date, payable to Loewenstein, Baer & Bro., and by them assigned to appellants.
The assignment upon which this suit is brought is “ Baer Bros. & Wolilgemuth, S. Beifschneider; agent,” and was made August 25, 1885. On the trial in the Circuit Court appellee obtained judgment for the amount due on the note and appellants bring the case up by appeal.
It is insisted, first, that there is no proof of the agency of S. Beifschneider and that therefore appellants can not be held liable as indorsers.
It appears that appellee got the note in payment for a span of mules, the price of which was $300, he giving his note to appellants for $33, the amount then due on the assigned note above the price of the mules. Appellee testified that he made the trade with Aaron Baer, one of the appellants, who could not come after the mules himself but said “ I will send my agent, Beifschneider, and he will do as well as I will.” In this he is corroborated by James Matthews and Wm. Fults. Beifschneider did call for the mules and deliver the note, taking the $33 note in appellant’s name, and at the request of appellee made the assignment above mentioned. He testifies, however, that he had no authority for so doing, as does Amson and Aaron Baer. They claim that one George Schab was sent with the note and to return the mules, and that Beifschneider was not in their employ but went at the request of Schab. There is unquestionably a sharp conflict in the evidence on *314this question and if it depended upon the express agreement of the parties as to who should transact the business, it might well be doubted whether there is sufficient authority shown in the agent to bind appellants, but it does clearly appear that they accepted the mules and the small note, and, with full knowledge of the fact that the note was indorsed by Reifschneider as their agent, have retained both, and at no time offered to return them. In fact, they transferred the $33 note and it was collected off of appellee.
There need be no citation of authorities in support of the position that if the property obtained by the indorsement of the note was retained by appellants with a full knowledge of the facts, such conduct would amount to a ratification of the act of the agent, although unauthorized at the time it was done. It is contended by appellants that, inasmuch as one of their firm told appellee that he wanted it distinctly understood that they were not liable for the note, that they thereby repudiated the act of the agent. It is shown, however, that in the same conversation this member of the firm inquired of appellee why he was so particular as to make Reifschneider indorse' the note, saying, “We always indorse without recourse,” thereby showing a knowledge of the fact that appellee had required the indorsement before surrendering the property and giving his note. Clearly, he could not then repudiate the agency by which the indorsement was made and the property obtained, and, at the same time, keep the proceeds. We find no warrant in the evidence for the position that the trade was completed between appellee and Amson Baer, an 1 that, by its terms, appellee was bound to take the note unindorsed. There is nothing to show any such understanding.
The second ground of reversal urged is, that appellee has failed to prove due diligence on his part in attempting to collect the note from the makers. He got the note on the 25tli day of August, 1885, and it was then past due.
In order to show due diligence by suit, it was necessary that he should bring his action to the next term of the court having jurisdiction, and to have prosecuted it to judgment at *315the earliest period within his power, had execution issued, etc. Robinson v. Olcoff, 27 Ill. 181.
The next term of court in that county, to which he could have sued on the note, began on the fourth Monday of September, A. D. 1885, and no reason whatever is shown for not so doing. Suit was delayed until the January term, A. D. 1886, of the County Court.
Diligence by snit has not, therefore, been shown. It then devolved upon appellee, under the other allegations of his declaration, to show that the maker, Sigerte, had absconded and left the State when the note was assigned to him, or to show that both the makers were insolvent. Pierce v. Short, 14 Ill. 144. Whatever may be said as to the proof of Sigerte’s absence from the State or his insolvency, we think there is an absence of proof that a suit against Jacob Pults at the September term, A. D. 1885, would have been unavailing. Appellee swears that at the time he got the note he thought him good; that it turned out lie was insolvent, “had nothing when the suit was brought against him.” When he became insolvent he does not pretend to state. The attempt to supply the omission in his testimony in chief by showing on his reexamination by parol that Jacob Fults had conveyed his interest in certain real estate prior to 1885, is unavailing for two reasons: First, the evidence was incompetent, and, second, it nowhere appears that between the time appellee got the note, and the suit, in January, 1886, he did not have other property than the real estate out of which the debt could have been collected.
Again, there is no proof whatever of Fults’ insolvency from April 25, 1886, to the date of bringing this suit, a period of about one year. Having failed to show diligence by suit to the first term after he got the note, the burthen of proof is upon appellee to show that the insolvency of the makers continued down to the time of the commencement of this suit. Bledsoe v. Graves, 4 Scam. 382. This is not done by showing a return of execution nulla l>ona a year before. For want of proof of due diligence by suit and of the insolvency of Jacob C. Fults, one of the makers of the note, the judgment of the Circuit Court is reversed and the cause remanded.
Reversed and remanded.