Foltz v. Hardin

Citations

• 139 Ill. 405
• 28 N.E. 786

Syllabus

<p>X. Pledge—by one debtor to secure joint debt—agreement as to proceeds. A and B being jointly liable upon their note of $4200 to C, A gave O a note he held, of $2500, as collateral security for the joint debt, B having nothing to do with the pledge. 0 foreclosed the mortgage securing the collateral note, and his attorneys bid off the premises for $2419, which 0 repudiated, as the property was not worth that sum. By agreement, however, with A, 0 was to hold the property as a security until the time of redemption expired, and then sell the property on the best terms he could, and be charged only for the proceeds of such sale. Being unable to sell the property, A and C agreed that the latter should retain the property for $1250, as the sum realized from the collateral: •Held, that as A put up the collateral, he had the right to agree with 0 that he might take it at a reduced amount, and that B, not occupying the position of a surety, could not com plain when sued on the note.</p> <p>2. Same—rights of pledgee. As a general rule, the pledgee of negotiable securities as collateral security for a debt has no right, in the absence of a special agreement, to accept less than the amount due on the collateral in payment thereof, and if he does so, he will be liable to the pledgor for the amount of the loss.</p> <p>3. Practice—specific objection—as, for variance. An objection to the admission in evidence of a note on the ground of variance must be specifically made on the trial, so as to afford an opportunity to obviate the variance by amendment, otherwise the question can not be raised in this court.</p> <p>4. On the trial of an action upon a promissory note the defendant objected to the introduction of the note in evidence on the ground of a misjoinder of the parties, and because the summons was improper: Held, that such objection did not raise the question of a variance between the note and the declarations.</p> <p>5. Same—pleading over after demurrer overruled. If, after