Boyce v. Commercial Publishing Co., 68 Ill. App. 617 (1897)

Feb. 9, 1897 · Illinois Appellate Court

68 Ill. App. 617

William D. Boyce v. Commercial Publishing Co.

1. Acquiescence—Justifies a Conclusion.—The long acquiescence in this case justifies the finding of the court below in favor of the plaintiff.

Assumpsit, on a promissory note. Payee v. Indorser. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.

Heard in this court at the October term, 1896.

Affirmed.

Opinion filed February 9, 1897.

Quigg & Bentley, attorneys for appellant.

Moran, Kbaus & Mayer, attorney for appellee.

Mr. Justice Gary

delivered the opinion oe the Court.

The appellee sued the appellant upon the guaranty shown as follows:

“ $2,500. June 30, 1892.

One year after date I promise to pay to the order of Commercial Publishing Co. twenty-five hundred dollars, at office Press Hews Ass’n, Chicago. Value received.

(Signed) . H. P. Hall.

(Indorsed) W. D. Boyce.”

There is considerable dispute, both on law and fact, as to the acceptance by the appellee and withdrawal by the appellant of the guaranty, but the facts about which there is no dispute are, that June 30th the appellant wrote and sent the following letter:

“Press Hews Association.

Officers :

T. J. Keenan, Jr., Prest., Pittsburgh Press.

W. H. Griffith, V. Prest., Denver, Col., Sun.

W. D. Boyce, Treas.,

Chicago.

H. P. Hall, General Manager.

Hews Office:

World Building, Boom 191, Hew York. Executive Office:

237 Broadway, Boom"44, Hew York. Business Office:

118 Fifth Avenue, Chicago.

Chicago, June 30, 1892. Mercantile Bank, Memphis, Tenn.

Gentlemen : Will you please have the Commercial Publishing Co. indorse the inclosed certificate of stock in blank, and when so indorsed, deliver to them the note attached, signed by H. P. Hall and indorsed by W. D. Boyce, and return the stock to me.

Yours very truly,

W. D. Boyce.”

July 21, 1892, the cashier of the Mercantile Bank wrote and sent the following letter :

“ July 21, 1892.

W. D. Boyce, Esq., care of Press Hews Ass’n, Chicago, Ill.

Dear Sir : Beferring to your favor of the 30th ult., I herein inclose, properly indorsed, certificate Ho. 164, for 25 shares of stock in Press Hews Association, and have delivered to the Commercial Pub. Co. note of H. P. Hall, indorsed by you, for $2,500, dated June 30,1892, and due July 3, 1893.

Very truly,

C. H. Baine, Cashier.”

From this last date to the time of the trial, the appellant had retained the certificate of stock, and the appellee had retained the note—-the time being about three and a half years.

Whatever may have been the backing and filling in July, 1892, this long acquiescence justifies the finding of the court, trying the cause without a jury, in favor of the appellee, and the judgment is affirmed.