Cheltenham Stone & Gravel Co. v. Gates Iron Works

Citations

• 124 Ill. 623
• 16 N.E. 923

Syllabus

<p>1. Payment—effect of accepting the promissory note of a third person, or of the debtor himself. The fact that a creditor takes from his debtor the note of a third person, and enters the amount thereof as a credit upon his books, and includes the same in a subsequent statement of the account, does not afford a presumption of law that such note was received as an actual payment, and throw the burden of proof „upon the creditor to show the contrary by a preponderance of the evidence.</p> <p>2. The taking of a note, either of the debtor or of a third, person, for a pre-existing debt, is no payment, unless it be expressly agreed to take the note as payment and to run the risk of its being paid, or unless the creditor parts with the note, or is guilty of laches in not presenting it for payment in due time. And it seems that the giving of a receipt for the amount is not enough to establish such a positive agreement.</p> <p>3. Practice—improper remarles of counsel to jury. In a case where the question was raised whether a note on a corporation was given in payment on account, defendant’s counsel, against the plaintiff’s objection, was allowed to argue that a scheme had existed whereby one of the officers of the defendant had foisted the note upon the plaintiff, knowing the maker to be or about to become insolvent, so that the loss might fall upon the plaintiff, the latter asked an instruction that there was no evidence in such regard, and that the jury should disregard such remarks, which was refused: Held, that while the remarks may have been improper, and the court might well have interposed as requested, this court could not say that the refusal to do so was such error as to require a reversal.</p>