Phy v. Clark

Citations

• 35 Ill. 377

Syllabus

<p>1. Pbohissoby note — evidence of an account stated. A promissory note is evidence of an account stated between the parties.</p> <p>2. Pbesumption — that it is correct. The presumption is, that such a note is given for the correct amount.</p> <p>3. Burden of proof—in respect thereto. And if the maker seeks to impeach the note in that regard, it is incumbent upon him to show what the items of the account upon which the note is based, were, and that some one or more of them were erroneous.</p> <p>4. Practice!—when certain objections must be taken — admissibility of testimony. Objections to the admissibility of testimony in chancery, not made on the hearing, are considered as waived and will not be noticed on error.</p> <p>5. It is not enough, that on the taking of a deposition, the party caused the master to note his objection; the record must show that the objection was also made at the hearing, or it will not be regarded.</p> <p>6. Consignee of property, for sale — where he shall sell it. A merchant in Kane county consigned a lot of corn to the house of which he was buying goods, in Chicago, to be there sold by the consignees, and the proceeds applied on his account. The consignees, without authority, sent the corn to Hew York for sale, and the net proceeds were less than could have been realized in Chicago. Held, the consignee had no right to send the corn away from Chicago for sale, and was liable to account for what it would have brought in that market.</p> <p>Í. Costs — when they will not be decreed. In chancery, the complainant, in seeking to obtain an injunction against a judgment at law, and an account, asserted claims which he failed to establish; and the defendant was in fault in not crediting the proper amount on the note on which the judgment, which was by confession on warrant of attorney, was entered. Held, under such circumstances, each party should pay his own costs in the court below.</p> <p>8. Costs in the Supreme Court. And on appeal by the compl