{ "id": 5080286, "name": "Edwin J. Bowes, Jr., and John R. Bowes, as Edwin J. Bowes, Jr., & Bros. v. Industrial Bank of Chicago", "name_abbreviation": "Bowes v. Industrial Bank", "decision_date": "1895-01-10", "docket_number": "", "first_page": "498", "last_page": "504", "citations": [ { "type": "official", "cite": "58 Ill. App. 498" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "79 Ill. 145", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2685415 ], "opinion_index": -1, "case_paths": [ "/ill/79/0145-01" ] }, { "cite": "46 Ill. 58", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5297342 ], "opinion_index": -1, "case_paths": [ "/ill/46/0058-01" ] }, { "cite": "54 Ill. 213", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5276203 ], "opinion_index": -1, "case_paths": [ "/ill/54/0213-01" ] }, { "cite": "55 Ill. 156", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5273819 ], "opinion_index": -1, "case_paths": [ "/ill/55/0156-01" ] }, { "cite": "39 Ill. 31", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5258747 ], "opinion_index": -1, "case_paths": [ "/ill/39/0031-01" ] }, { "cite": "19 Ill. 29", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 441672 ], "opinion_index": -1, "case_paths": [ "/ill/19/0029-01" ] }, { "cite": "20 Ill. App. 236", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4907083 ], "opinion_index": -1, "case_paths": [ "/ill-app/20/0236-01" ] }, { "cite": "17 Mo. 406", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 8855636 ], "opinion_index": -1, "case_paths": [ "/mo/17/0406-01" ] }, { "cite": "20 Ill. 144", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2595479 ], "opinion_index": -1, "case_paths": [ "/ill/20/0144-01" ] }, { "cite": "13 Ill. App. 101", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4865938 ], "opinion_index": -1, "case_paths": [ "/ill-app/13/0101-01" ] }, { "cite": "33 Ill. 424", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5211942 ], "opinion_index": -1, "case_paths": [ "/ill/33/0424-01" ] }, { "cite": "20 Ill. App. 521", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4903728 ], "opinion_index": -1, "case_paths": [ "/ill-app/20/0521-01" ] }, { "cite": "97 Ill. 11", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2844116 ], "opinion_index": -1, "case_paths": [ "/ill/97/0011-01" ] }, { "cite": "150 Ill. 122", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5472355 ], "opinion_index": 0, "case_paths": [ "/ill/150/0122-01" ] }, { "cite": "76 Ill. 303", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5315275 ], "opinion_index": 0, "case_paths": [ "/ill/76/0303-01" ] }, { "cite": "2 Scam. 250", "category": "reporters:state", "reporter": "Scam.", "opinion_index": 0 }, { "cite": "16 Ill. 269", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2588121 ], "opinion_index": 0, "case_paths": [ "/ill/16/0269-01" ] }, { "cite": "4 Mass. 258", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2003848 ], "opinion_index": 0, "case_paths": [ "/mass/4/0230-01" ] }, { "cite": "1 Wend. 522", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2003360 ], "opinion_index": 0, "case_paths": [ "/wend/1/0522-01" ] }, { "cite": "86 Ill. 597", "category": "reporters:state", "reporter": "Ill.", "pin_cites": [ { "page": "601" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 589, "char_count": 11022, "ocr_confidence": 0.545, "pagerank": { "raw": 5.676830387708631e-08, "percentile": 0.35600415313788564 }, "sha256": "7cdc83c8d417536dc81a4c74acefdd13a804a8f2e8b032aad066ed773adcd338", "simhash": "1:298f89d180e015fe", "word_count": 1901 }, "last_updated": "2023-07-14T20:52:30.003237+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Edwin J. Bowes, Jr., and John R. Bowes, as Edwin J. Bowes, Jr., & Bros. v. Industrial Bank of Chicago." ], "opinions": [ { "text": "Mr. Justice Gary\ndelivered the opinion of the Court.\nAt the foundation of this suit is an instrument as follows: \u201c$500. Ho. 4,794.\nChicago, June 17th, 1892.\nTo E. J. Bowes, Jr., & Bros.:\nThis is to certify that Empire Building Co., contractor for the entire work of your building, Ho. \u2014 Fulton street, is entitled to a payment of five hundred dollars..\nContract. $7,850. by the terms of the contract.\nExtra work. Remarks.\nDeductions.\nTotal.\nPrevious issues, $6,325.\nPresent issue, 500 $6,925.\nBalance, ' $925.\nWilson & Marble,\n(Indorsed) By A. H. Dood.\nPeabody, Houghteling & Co.,\nPay to the order of Empire Building Co.\nJohn R. Bowes.\nPay to the order of Industrial Bank,\nEmpire Building Co.\nG-. C. McArthur, Treas.\u201d\nIt is assumed that the signature to the first indorsement is to be regarded as that of the appellants. There is no evidence that the instrument was presented to Peabody, Houghteling & Co.-for payment before July 17, 1892, nor that any notice of presentment for payment, and the fact of non-payment, was given to the appellants before August 3, 1892.\nThe appellants offered to prove that they had overpaid, the Empire Building Co., which evidence the court rejected, and the appellants excepted.\nFor the appellee the court gave, over exception by appellants, these instructions:\n\u201c The jury are instructed on the plaintiff\u2019s behalf that if they believe from the evidence that the plaintiff obtained the instrument sued upon for a valuable consideration, without notice of mistake or fraud, they will find for the plaintiff and. assess its damages at $500, and interest thereon at five per cent from June 17, 1892.\nIf jury believe from evidence that plaintiff obtained instrument sued on for value after the Empire Building Company, or some one of them, had presented the same to\u00b0 Peabody, Houghteling '& Co. for payment on or about its date, that is sufficient presentment, and you shall find for the plaintiff.\nIf jury believe from the evidence that plaintiff obtained certificate for valuable consideration, in ordinary course of business, and discounted the same, they must find for plaintiff.\u201d\nAnd refused those asked by the appellants as follows :\n\u201c 1. If jury believe from evidence that plaintiff is holder of certificate for value, and that the same was not presented for payment until the Empire Company had been paid in full, they must find for the defendants.\n2. If jury believe from the evidence that the plaintiff is the holder of the certificate for value, nevertheless the plaintiff was required to use due diligence in demanding payment, and if jury believe from evidence that plaintiff did not demand payment until after the Empire Building Company had been paid in full, must find for the defendant.\n3. If jury believe from evidence that plaintiff holds certificate in good faith and for value, nevertheless the plaintiff was required to use due diligence in collecting amount called for, and if they believe from evidence that by mistake certificates for too much money were issued by architect and that plaintiff did not demand payment until after contractors had been paid in full, and the loan in Peabody, Houghteling & Co.\u2019s hands was exhausted on certificates previously presented, they must find for defendants.\u201d\nTo \"which refusal appellants excepted.\nThat the indorsement signed John It. Bowes, in fact for or as the act of the appellants, was a bill of exchange on Peabody, Houghteling & Co., payable at.sight, the sum being adopted from the face of the instrument, is a position which is in accord with such authority as there is applicable to the subject. Story on Bills, Sec. 33; Leonard v. Mason, 1 Wend. 522.\n\u201c Every indorsement of a bill maybe considered as a new bill, drawn by the indorser on the acceptor in favor of the payee.\u201d (Payee under the indorsement must be understood.) Van Staphorst v. Pearce, 4 Mass. 258; same point in Heylyn v. Adamson, 2 Burr. 669.\n\u00a1Now the reason, of that doctrine is, not that the face of the paper is a bill of exchange, but that the indorsement is a direction, or an order, to the drawee to pay the amount\u2014 the sum of money\u2014expressed in the bill, to the person, or his order, who may be named. in the indorsement. The same reason applies if that direction or order applies to the sum expressed on the other side of any paper; provided it is clear that sum is adopted in the direction or order.\nAnd it is only because the indorsement by the appellants is a bill of exchange that the second indorser of the paper can sue the first indorser.\nIf it were not a bill of exchange the law merchant would not apply to it, and being not a promise or agreement to pay, or an acknowledgment of indebtedness, the statute does not. Peoria & O. R. R. v. Neill, 16 Ill. 269; Clifford v. Keating, 2 Scam. 250.\nAnd to charge the appellants as drawers, the bill must have been presented for payment, and notice of non-payment given according to the law merchant, which we need not repeat. Montelius v. Charles, 76 Ill. 303.\nBut holding as we do that the instrument is a bill of exchange, the point that the appellants are discharged was not made below, where perhaps it might have been answered by evidence; nor is the point made in this court. People v. Hanson, 150 Ill. 122.\nThe judgment is affirmed.", "type": "majority", "author": "Mr. Justice Gary" }, { "text": "Mr. Justice Gary\non rehearing.\nWe did not treat the appellants fairly in the original opinion. The instructions refused, there copied, do raise questions on diligence and delay; but as it was clear that the discovery that the indorsement by the appellants was a bill of exchange was our own, we held that the point of discharge of the drawer of such a bill, by negligence of the holder, was not made on the trial, where nobody thought of a bill of exchange.\nThis is equivalent to holding that if a party takes a right position, but does not sustain it by assigning the right reason for his position, then his position is bad, which holding allows no margin for the superior wisdom of the court to work upon.\nThat our form of argument was not in the brief of the appellants is unimportant. Yager v. Palmer, 86 Ill. 597, 601.\nThis point is omitt\u00e9d in the syllabus of that case.\nWe ought at'first to have reversed the judgment and remanded the cause, and therefore do it now.\nReversed and remanded.\nShepard J., dissents.", "type": "rehearing", "author": "Mr. Justice Gary" } ], "attorneys": [ "Woolfolk & Browning, attorneys for appellants.", "Appellee\u2019s Brief, Jones & Strong, Attorneys." ], "corrections": "", "head_matter": "Edwin J. Bowes, Jr., and John R. Bowes, as Edwin J. Bowes, Jr., & Bros. v. Industrial Bank of Chicago.\n1. Bills of Exchange\u2014Form of, by Indorsement,\u2014The indorsement\u2014\n\u201c Peabody, Houghteling & Co.,\nPay to the order of Empire Building Co.,\nJohn R. Bowes,\u201d\non the following instrument:\n\u201c $500 No. 4,794.\nChicago, June 17th, 1892.\nTo E. J. Bowes, Jb., & Bhos.:\nThis is to certify that the Empire Building Co., contractor for the entire work of your building No. \u2014 Fulton street, is entitled to a payment of five hundred dollar's by the terms of the contract.\nContract........................ $71850\nExtra work...................Remarks.\nDeductions......................\nTotal\nPrevious issues, $6,325...........\nPresent issue................$500 6,925\nBalance $925\nWilson & Mabble.\nBy A. H. Dodd.\u201d\nis held to be a bill of exchange on Peabody, Houghteling & Co., payable at sight, the sum being adopted from the face of the instrument.\n2. Same\u2014Renewed by Indorsement.\u2014Any indorsement of a bill of exchange may be Considered as a new bill drawn by the indorser on the acceptor in favor of the payee.\n3. Same\u2014Presenting for Payment, to Charge Drawer.\u2014To charge a person as drawer of a bill of exchange, the bill must be presented for payment, and notice of non-payment given according to the law merchant.\nAssumpsit, on a bill of exchange. Appeal from a judgment of the Superior Court of Cook County; the Hon. Jambs Goggin, Judge, presiding. Submitted at the October term, 1894.\nAffirmed.\nOpinion filed January 10, 1895.\nRehearing granted and reversed and remanded.\nOpinion on rehearing filed April 4, 1895.\nWoolfolk & Browning, attorneys for appellants.\nAppellee\u2019s Brief, Jones & Strong, Attorneys.\nAppellee contended that the instrument sued is negotiable.\nNegotiable instruments are instruments on which a right of action passes by an assignment by mere indorsement. Usually the test of the negotiability of an instrument is found in the use of the words \u201c order\u201d or \u201c bearer.\u201d It may be stated as a rule of law that these words or their equivalent are essential to invest the instrument with the attribute of negotiability. 16 Am. & Eng. Enc., 479; Fawcett v. Nat. L. Ins. Co., 97 Ill. 11; Lowry v. Andreas, 20 Ill. App. 521.\nOur statutes provide: \u201c All instruments in writing made by any person, whereby such person acknowledges any sum of money to be due any other person, shall be taken to be due and payable, and the sum of money therein mentioned shall by virtue thereof be due and payable as therein expressed.\u201d Ill. Rev. Stat., Chap. 98, Sec. 3.\nThe statutes also provide, Sec. 4, Chap. 98: \u201c Any instrument in writing made payable to any person named as payee therein shall be assignable, by indorsement thereon under the hand of such person and of his assignees, in the same manner as bills of exchange are, so as absolutely to transfer and vest the property thereof in each and every assignee successively.\u201d\n\u201c A bill of exchange is an unconditional order in writing for the payment of a sum of money absolutely and at all events.\u201d Daniel on Negotiable Instruments, Sec. 27 (4th Ed.); Benjamin\u2019s Chalmers, Bills, Notes and Checks, Art. 1.\nNo particular form is necessary to its validity. Dan\u2019l Neg. Inst., Secs. 35, 106; 2 Am. and Eng. Ency. 321; Weston v. Myers, 33 Ill. 424; Hibbard v. Holloway, 13 Ill. App. 101; Swift v. Whitney, 20 Ill. 144.\nSufficiency of fund is immaterial. Benj. Chal. Bills, etc., Art. 10, Explan. 2.\nIf the sum payable can be gathered from any part of the instrument, whether from the figures or the form of expression in the body of the bill, it is valid. Benj. Chal. Bills, etc., Art. 12, Explan. 2; Murrill v. Hundy, 17 Mo. 406.\nThe contract between the original parties to the paper is to be gathered from all that appears in it. Prins v. So. Branch Lumber Co., 20 Ill. App. 236; Riley v. Dickens, 19 Ill. 29; Corgan v. Frew, 39 Ill. 31.\nIt is usual, but not necessary to insert date. Dan\u2019l Neg. Inst., Secs. 131, 83; 3 Am. and Eng. Ency. 320; Benj. Chal. Bills, etc., Art. 15.\nIt is usual, but not necessary, to state the place where drawn. Childs v. Laflin, 55 Ill. 156; Benj. Chal. Bills, etc., Art. 2.\nPayable on demand is understood when no time of payment is expressed. Dan\u2019l Reg. Inst., Sec. 88; Benj. Chal. Bills, etc., 18 Explan. 1.\nA delivery of an incomplete bill, signed or indorsed for use as such, confers a prim,a facie authority upon any successive holder to fill the blanks necessary to its completion; and if the bill be negotiated to a holder for value without notice, the presumption of authority becomes absolute. Benj. Chal. Bills, etc., Art. 23; Dan\u2019l Neg. Inst., Sec. 38 and 142; Eliot v. Lovings, 54 Ill. 213; Maxwell v. Vansant, 46 Ill. 58; Boynton v. Pierce, 79 Ill. 145." }, "file_name": "0498-01", "first_page_order": 494, "last_page_order": 500 }