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Hutcheson v. Herron

DECEMBER 7, 1970.




APPEAL from the Circuit Court of Cook County; the Hon. THOMAS R. McMILLEN, Judge, presiding.


Rehearing denied January 19, 1971.

This is an appeal from two judgments of the Circuit Court of Cook County entered on behalf of plaintiff, Elizabeth Hutcheson, against defendant, Dr. Harold Herron, for the principal amount of two judgment notes plus interest.

The defendant contends, on appeal, (1) that the findings of the Circuit Court are against the manifest weight of the evidence, (2) that alterations of the notes after execution rendered them unenforceable, and (3) that the Circuit Court was not empowered to open the judgment by confession and enter two new, separate, and distinct judgments.

Dr. Harold Herron executed two judgment notes on December 17, 1963, payable to Betty or Byron Hutcheson in the amounts of $3,000.00 and $7,500.00. Byron Hutcheson, one of the alternative payees on the notes, died on November 4, 1966. His estate was duly probated in the Circuit Court of Cook County, but the notes executed by Dr. Harold Herron on December 17, 1963, were not included in the probate estate.

Elizabeth Hutcheson commenced this action as the possessor and surviving alternative payee on the notes. Judgment by confession was entered on her behalf for the principal of both notes plus interest on November 6, 1967. The judgment was opened upon the verified petition of the defendant who was given leave to file an answer and later leave to file an amended answer. The judgment by confession stood as security.

The matter came to trial before the Circuit Court without a jury on February 4, 1969. We summarize the evidence. Dr. Herron testified that on December 17, 1963, he went to Byron Hutcheson's home with his son, Stephen, where, in the presence of his son and Byron Hutcheson, he filled out and signed, in red ink, the form judgment notes involved in this litigation. He testified further that the insertions on the note written in blue ink were not in his handwriting and were not on the notes when he executed them. He stated that he received no money from Byron Hutcheson and that he had executed the notes solely as an accommodation to Hutcheson. "He [Byron Hutcheson] stated that he wanted me to sign the notes because he had a matter that he wanted to use the money for without anybody's knowledge and just sign the notes as a procedure so he could show his wife, and forget it." Dr. Herron admitted that he borrowed $5,000.00 from Byron Hutcheson in 1959, and that $3,000.00 was due and owing on that loan.

Blue ink insertions appear in three places on each of the notes. The words "5% int." appears in blue ink on each of the notes in the space provided for the insertion of the interest rate on the form judgment note; the words "1 yr." in the $3,000.00 note and "2 yrs." in the $7,500.00 note appear in blue ink and transform those notes from demand notes to notes payable one year after date and two years after date respectively; a line in blue ink on each note crosses out the printed words in the cognovit "and at any time after date."

Stephen Herron, the defendant's son, testified that he accompanied his father to Byron Hutcheson's home on December 17, 1963, and that Byron Hutcheson asked his father to sign the two notes "so that he [Byron Hutcheson] could use the money himself." He saw his father sign the notes, but at no time did he see Byron Hutcheson give his father any money.

Elizabeth Hutcheson, the plaintiff, testified that Dr. Herron and his son, Stephen, came to their home on about December 14, 1963. At that time she saw her husband give Dr. Herron $7,500.00 in cash. She saw the notes involved in this litigation for the first time a few days after December 17, 1963. Her husband explained to her that "the doctor had given him two notes, one for the balance of $3,000.00 on a 1959 loan and a note for the $7,500.00 that was given him a few days prior." She testified that the notes were in the same condition at trial as they were when she first saw them and that the insertions made in blue ink were in the handwriting of her husband. On cross-examination she explained that her husband did not give Dr. Herron a check for $7,500.00 "because the Doctor had to have cash."

The two cancelled checks signed by Byron Hutcheson were received in evidence. Both checks were dated December 13, 1963; one in the amount of $5,000.00 was made payable to cash and the other in the amount of $2,500.00 was made payable to A.C. McClurg & Co., the firm at which Byron Hutcheson was employed as a vice president.

Ben Tsusake, a former foreman of McClurg's shipping department, testified that Byron Hutcheson approached him and told him that he was having trouble with a girl friend and needed money for that purpose. Hutcheson asked him to sign a note, but he refused "because I (Tsusake) could never cover the $5,000.00."

We first consider whether the finding of the Circuit Court that Dr. Herron executed the notes for value is against the manifest weight of the evidence. Dr. Herron admitted that he borrowed $5,000.00 from Byron Hutcheson in 1959, and that there is still due and owing a balance of $3,000.00 on that indebtedness. He insists, however, that the money is due to Byron Hutcheson's estate and not to the holder of the $3,000.00 note. Elizabeth Hutcheson testified that her husband cashed checks amounting to $7,500.00 on December 13, 1963, and that she saw her hubsand give the cash to Dr. Herron. The two cancelled checks totaling $7,500.00 were received in evidence.

• 1 When reviewing a record we do not sit as a fact finding body. Where there is sufficient credible evidence, the findings of the trial court will be affirmed. The trial judge, sitting without a jury, has a duty to sift the conflicting evidence and to draw reasonable inferences therefrom. He is in a superior position to evaluate the testimony of the witnesses who appear before him. Brown v. Zimmerman, 18 Ill.2d 94, 163 N.E.2d 518 (1959); Schulenburg v. Signatrol Inc., 37 Ill.2d 352, 226 N.E.2d 624 (1967). We believe that there is ample evidence to support the ...

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