Clayes v. White

Citations

• 65 Ill. 357

Syllabus

<p>1. Indorsement in blank of note—right to fill up with guaranty—estoppel. Where the holder of a note indorsed in blank, wrote over the name of the indorser an ordinary assignment, upon which he sued the indorser, s eking to hold him on the conditional contract of assignment, and recovered judgment, which was reversed; and on the trial of another suit, he offered the same note in evidence, with a guaranty of payment added to the words of assignment, and introduced evidence tending to prove a verbal agreement of guaranty: Held, that, aside from the objection of the want of authority to alter or vary the legal effect of the indorsement in blank, or of the competency to do so by evidence of a verbal guaranty, the holder, having elected to fix the indorser’s liability as the conditional one of assignor, and sought to enforce the same, was concluded from setting up a different and absolute liability as guarantor, either by wilting over the indorser’s name, or by making proof of a verbal guaranty.</p> <p>2. Set-off—of a demand in a pending suit. The pendency of another action for a claim offered as a set-off does not defeat the right of set-off.</p> <p>3. Where the holder of an assigned promissory note had recovered judgment against his assignor and collected the same, and the defendant in that suit, after a reversal of the judgment, brought suit to recover back the money paid.by him on the judgment: Held, that the defendant in the latter suit might set off whatever sum he could show he was entitled to recover of the plaintiff upon his assignment of the note, notwithstanding the pendency of the former suit</p>