delivered the opinion of the court:
The only questions presented for our consideration arise out of the rulings of the superior court in refusing to give to the jury the second and third instructions offered by the defendants below, and in giving to the jury the sixth and ninth as requested by plaintiff below. These instructions are set out in the statement preceding this opinion. One issue involved the question whether there was a payment of the West-Munroe note for $25,000 by the making, delivery and acceptance of the Times-West note for $25,750; another, whether in surrendering said Times-West note for still another note the plaintiffs in error became liable for its value to defendant in error. And the point made is, that in determining whether what was done amounted to a payment or not, or whether or not the plaintiff, as owner of either the West-Munroe note or the Times-West note, had been damaged by the unauthorized acts of the defendants, the pledgees, it was important that the jury should be correctly instructed as to the lawful authority of West, who was the president of the Times company, to make and deliver said Times-West note in payment of said West-Munroe note, or in exchange for the same. Said Times-West note purported to be executed by the Times company and was payable to James J. West. It was for the amount of the principal and interest of the West-Munroe note and was endorsed in blank by said West, hence West, who was liable to pay the West-Munroe note, was also liable to pay the Times-West note. But the evidence tended to prove that West was insolvent, and that the said notes, so far as his liability thereon was concerned, were worthless, while the note of the Times company—if it was the note of said company given for value and not as mere accommodation paper—was good and worth its face. The law would be, however, that if said West-Munroe note was paid to the plaintiffs in error as pledgees they would be liable to account for its face to the defendant in error, the owner, whether the note was valueless or not. Having received payment, the question of its prior value became immaterial. Nor would it be material on the question of their liability whether they accepted such payment in money or in another note,—if there was, in fact, a payment,— they having no authority from the pledgor to receive anything in payment except its full face value in money.
There were, then, two important questions of fact before the jury: First, was the making, delivery and acceptance of the Times-West note a payment of said WestMunroe note; and second, if not, was it an exchange of one for the other, as alleged in the second of the additional counts, the second note becoming the property of the pledgor. If it was the latter, then the defendant in error had the right to treat such exchange as made for his benefit, and to hold the plaintiffs in error to the same accountability for said Times-West note so taken in exchange as for the one for which it was exchanged.
The contention of plaintiffs in error is that West had no authority to execute the Times-West note, for and in the name of the Times company, payable to himself; that his authority, as president, to execute commercial paper for the company did not authorize him to make and issue the note of the company to himself and with which to pay and take up his own obligation,—citing Dobson v. More, 164 Ill. 110, Park Hotel Co. v. Fourth Nat. Bank, 86 Fed. Rep. 742, and other cases. This proposition of law and fact is urged in support of the one that the Times-West note was of no value as a note against the company because legally unenforceable against it, but was only enforceable against West, the endorser, and that therefore the jury could not find that by its surrender the defendant in error had lost its value as a note against the Times company. The legal proposition involved need not be controverted; but the jury found the facts the other way,—that is, that West did have authority to make and deliver the note, and that it was made to take up the West-Munroe note because the money for which the latter note was given was borrowed for and was used by the Times company. Nor can it be said that this finding was without evidence to support it. There was such evidence, and as a question of fact it was not controverted by evidence. With these facts established or before the jury it would have been error to give said second refused instruction on behalf of plaintiffs in error.
Nor do we think that the legal results declared by the third refused instruction would necessarily follow from the fact recited in that instruction. The manner in which the books of the Times company were kept would not conclusively determine that the original indebtedness was not in reality that of the Times company instead of that of West. They were facts proper to be considered, but in no view were they conclusive.
We cannot see that the said sixth and ninth instructions given at the request of the plaintiff below are open to the objection urged, that they told the jury that the debt for which the West-Munroe note was given was in reality the debt of the Times company. The instructions did not conclude the jury on that question, but left it to be determined from the evidence.
The record does not sustain counsel in his assignment of errors, and no error appearing, the judgment of the Appellate Court must be affirmed.
Judgment affirmed.