delivered the opinion of the Court:
The arguments filed in this cause on either side are devoted mainly to a discussion of the facts. The determination of the Appellate Court is conclusive of all questions of fact, and we are permitted to examine into the evidence only to ascertain whether the law was properly applied by the trial court, and whether there has been error in the admission or exclusion of testimony.
It is insisted that the circuit court erred in excluding from the jury the memorandum on the back of the note produced by appellant, and claimed to be in the handwriting of Lewis Chamberlain, and the portions of the letter of Lewis Chamberlain in which it is claimed the note was sent to appellant. Two reasons are assigned why the exclusion thereof was erroneous. It is said by counsel that the note having been produced by appellant, and admitted in evidence, the indorsements on the-back of it were also admissible, and the-case of Long et al. v. Kingdon, 25 Ill. 66, is cited in support. In general it is true that where the note comes from the possession of the party seeking to enforce payment, all indorsements of payments thereon are prima facie evidence that such payments have been made, but such indorsements may even then be explained. This is as far as the authority cited goes. When, however, as in this case, the note comes from 'appellant, who is the maker, and who is seeking to avoid its payment, if he wishes to introduce memoranda indorsed on the note, and which is not the mere indorsement of payments, he must first show that it was made while in the possession of the payee or other legal holder of the note, or made by some one having authority to make it.
It is said this indorsement of the words, “Freeman, I have paid this note in full to John, and send it to you—Lewis Chamberlain,” was made by Lewis Chamberlain while the note was in his possession; but there is no competent testimony offered to prove this fact, nor do we find any evidence in the record tending to show that such memoranda on the note was in Lewis Chamberlain’s handwriting, or that any such evidence was offered by appellant. The evidence tends to show that the letter referred to is in the handwriting of the father, Lewis Chamberlain. But suppose it be admitted that the memorandum was written by Lewis, is the memorandum and letter, or either, competent evidence to prove the fact therein stated ? The court admitted so much of the letter as related to or was connected with the act of sending the note, as part of the res gestee of that act, but excluded all that portion which attempted to state what had been done at some previous date. It is testified to, and not contradicted, that appellee lost the note of appellant some time before the trial, and if the note produced by appellant is the genuine note, it turns up for the first time, after its alleged loss, in the hands of appellant, so far as known or testified to by any person.
There is no pretence that appellant ever paid the note, or any part of it, except $100 in 1875, and $100 in 1877, both of which are admitted by appellee. The only evidence that the note was ever in Lewis Chamberlain’s possession, is the testimony of appellant that he received it in the letter offered in evidence purporting to be from his father, and which there is evidence strongly tending to show was in the father’s handwriting. All the rest depends upon the statement written on the back of the note and contained in the letter. It is contended that this evidence is admissible upon two grounds: First, because Lewis Chamberlain was in possession of the note when they were written; he was dead at the time of the trial, and the memorandum and letter were made and written in the usual course of business, and are against his interests; and secondly, that such waitings are admissible as part of the res gestee. To be competent as res gestee, they must have been cotemporaneous with and explanatory of the transaction of paying off and taking up the note,—part of that transaction. This they do not purport to have been. When the note was paid, if ever, does not appear, and they do not of themselves state, but on their face each is but a narration of an event that had previously taken place,—of something the writer had done at some time in the past. These writings are not admissible upon that ground, nor can they be admitted upon any ground. As to these parties, they fall within none of the rules admitting the declarations of third parties. Here there is, as said, nothing purporting to show when the note was paid, if ever, nor that this entry on the back of the note was done in the regular course of business, and it can not be said to be against the interest of Lewis Chamberlain whether he intended a gratuity to appellant or not. (1 Green-leaf on Evidence, sec. 120.) We have seen that this is not an indorsement on the note by a holder, of a payment made on the note by any one liable thereon as maker, indorser, or otherwise, but an entry thereon by a stranger to it, who may have been in possession, of his act in relation thereto, and we are of opinion that it is hearsay only, and not admissible for any purpose in a suit between the payee and maker.
The objection taken to the third and fourth instructions given at the instance of appellee is, that by these instructions the jury are told, in effect, they might find for plaintiff upon either of the special counts of the declaration if the evidence warranted such finding, when the evidence showed conclusively that there was but one note, while the counts mentioned counted upon distinctly different notes. To this it may be replied, that whilst the evidence on both sides showed clearly that one note only was given by appellant to appellee, it was left in doubt as to whether the note described in the first or second count was the real note. Appellee testified that the note was for $954.47, dated April 20, 1874, and payable on demand. Appellant produced a note for $944.06, dated February 4, 1874, which he testified was the note given by him to his brother, appellee. All agree that but one note was given, and unless paid by Lewis Chamberlain, that it remained unpaid. The claim was for the same identical indebtedness, whether represented by one note or the other. The jury might very well say that appellee, testifying from memory, was less liable to be accurate as to the precise date and amount of the note, than appellant, who seemed to be corroborated by the production of a note of about the same date and amount. Suppose the jury, from all the evidence, had been satisfied that appellee was mistaken as to the exact date and amount of the note he claimed to have lost, and that appellant was correct, and the note produced by appellant was in fact the note, and further believed, from the evidence, that the indebtedness, no matter by which note represented, had not been paid, would plaintiff be precluded from recovery thereon because they believed he was mistaken, or because he was in fact mistaken as to the date or amount of the note ?
The third instruction simply told the jury under these circumstances plaintiff could recover. The fourth instruction related to the count where the note was described as appellee testified it was, and said to the jury the plaintiff might recover on that count if they believed, from the evidence, that the note then counted on had been made and delivered, and remained unpaid. It is evident, or at least will be made so, by calculating interest on the original note from February 12 to April 20, that the amounts of these notes described are substantially the same, and further, that the verdict on either would be for practically the same amount, so that if the jury found the indebtedness unpaid, it was practically of little importance which theory they adopted. There is no complaint that the verdict is excessive, if calculated on either of the notes described.
We see no objection to the seventh instruction complained of by appellant. It is not error for the court, at the request of the party, to state to the j ury the theory upon which a case is being tried, and then announce the law applicable to such theory; and it is the province of the jury to decide whether one theory or another is sustained by the evidence, under the law announced by the court. This instruction did no more than this.
These are the only instructions to which special objections are pointed out by counsel, and we are unable to see any error in others given, or in refusal of those refused by the court.
Upon the trial, appellant, after offering the letter of Lewis Chamberlain in evidence, produced the testimony of a number of witnesses, who testified that said letter was in the handwriting of said Lewis Chamberlain. After he had closed his ease in chief, and the plaintiff had concluded in rebuttal, appellant called one Edwards, and proposed to prove by him the handwriting of said letter was that of Lewis Chamberlain. Objection was made, and sustained, and appellant excepted. The evidence offered was proper in- chief. It was a matter of discretion whether it should be admitted, or not, when offered, and we can not say that the discretion was not properly exercised.
Finding no error for which the judgment should be reversed, the judgment of the Appellate Court is affirmed.
Judgment affirmed.