Dawson v. President, 5 Ill. 56, 4 Scam. 56 (1842)

Dec. 1842 · Illinois Supreme Court

5 Ill. 56, 4 Scam. 56

John W. Dawson et al. v. The President, Directors, and Company of the Bank of Illinois.

Appeal from McLean.

I. Promissory Note, — Defective flea in bar. A plea to an action upon a promissory note, by the payees against the makers, that at the time of the execution of the note, the payees agreed to receive ten per cent, of the amount of the note, when it should become due, and accept a new note payable seven months from the falling due of said note, for the residue, is no bar to the action.

This cause was tried in the McLean circuit court, at the September term, 1842, before the Hon. Samuel H. [* 57] Treat. Judgment was rendered for the plaintiffs for $979.87 damages, and costs of suit. The defendants appealed to this court, where the cause was submitted without argument.

E. D. Baker and A. T. Bledsoe, for the appellants.

J. J. Hardin, for the appellees.

Douglass, Justice,

delivered the opinion of the court.: This was an action of assumpsit in the McLean circuit court, by the Bank of Illinois against the defendants, on a promissory note made by the appellants to the appellees. The defendants pleaded, “ that at the time of the execution of their certain note in writing-in the plaintiffs’ declaration specified, they, the said plaintiffs, did then and there agree with the said defendants, to receive ten per cent, of the amount of the said promissory note in the'plaintiffs’ declaration specified, when the said note should become due and payable, according to the tenor and effect of the said note, and to take from the defendants 'a note for the remainder due to the said plaintiffs, after deducting the ten per cent, aforesaid, which said nóte was to be due and payable to the plaintiffs in seven months from the time of the becoming due of the said note in plaintiff’s declaration specified.”

To this plea there was a demurrer, which was sustained by the court, and the defendants saying nothing further, judgment was rendered for the plaintiffs for the amount of the note and interest.

The assignment of error questions the correctness of the decision of the court sustaining the demurrer to the said plea, and rendering judgment for the plaintiffs. •

The plea is palpably defective. It sets up a special agreement at the time of the execution of the note, of the benefits of which the defendants attempt to avail themselves, without any pretence of performance on their part.

The judgment is affirmed with costs.

Judgment affirmed.