Hollenback v. Williams, 2 Ill. 544, 1 Scam. 544 (1839)

July 1839 · Illinois Supreme Court

2 Ill. 544, 1 Scam. 544

Clark Hollenback, appellant v. Shadrach Williams and Henry Lander, appellees.

Appeal from, La Salle.

At common law, in an action by S. W. and H. L., on a promissory note made payable to W. and L., without mentioning their Christian names, the presumption would be that the plaintiffs, being holders of the note, were the persons to whom the promise was made, until the contrary was shown.

Under the statute of March 3,1839, in a suit on a promissory note, it is not necessary for the holders to show that they are the persons described in the note as payees, by their sur-names, where the general issue is pleaded.

Semble, That the rule is the same, whether the action was commenced and plea filed before or since the passage of the act.

This was an action of assumpsit commenced in the La Salle Circuit Court, on the 7th day of March, 1838, by the appellees against the appellants. The declaration was filed April 5th, 1838. It was in the usual form, upon the following promissory note:'

“June 14th, 1837. By the 1st of September next, I promise to pay Williams & Lander, the sum of two hundred and forty dollars, seven cents, it being for value received of them. As witness my hand.

Clark Hollenback.”

At the April term, 1838, the defendant pleaded the general issue. Thé cause was tried at the May term, 1839, before the Hon. Thomas Ford,-without the intervention of a jury. The note was the only evidence produced. The defendants objected to the admission of the note in evidence, because the partnership of the plaintiffs was not proved, and because the identity of the plaintiffs with the persons described in the note as payees, was not shown. The Court overruled the objection, and rendered judgment for the plaintiff for $219,16. The defendant excepted to the decision of the Court, and tendered a bill of exceptions, which was signed and sealed.

J. M. Strode and J. Y. Scammon, for the appellant.

G. Spring, for the appellees.

Smith, Justice,

delivered the opinion of the Court:

The only question presented for decision in this case, is, whether there is a variance between the note produced in evidence, and the one described in the declaration.

The declaration described the note as payable to the plaintiffs, who are Shadrach Williams and Henry Lander. The note produced in evidence, is payable to “ Williams and Lander.” It is contended that this does not show that the promise is to pay to the plaintiffs, and that the identity of the persons to whom the payment is to be made, is not proven by the bare production of the note; and that it was incumbent on the plaintiffs to show, by proof, that they are the persons to whom the note was given. The statute of the 2d March, 1839,⁽¹⁾ “regulating evidence in certain cases” provides “ That in trials of actions upon contracts express or implied, when the action is brought by partners, or by joint payees or obligees, it shall not be necessary for the plaintiffs, in order to maintain any such action, to prove the names of the co-partners, or the Christian names of such joint payees or obligees, but the names of such co-partners, joint payees or obligees, shall be presumed to be truly set forth in the declaration or petition.” Under this provision, we think it was not necessary for the plaintiffs to have shown by proof, that they were the same persons to whom the note was payable, under the names of Williams and Lander. The proof of identity, in such cases, is dispensed with. At common law the presumption would be, that being the possessors of the note, they were the owners and persons to whom the promise was made, until the contrary was shown.

The judgment is affirmed with costs.

Judgment affirmed.

Note. See Linn v. Buckingham et. al., Ante 451, note. See, also, Acts of 1840-1.

(1) Acts of 1838-9, 266.