delivered the opinion of the Court.
Upon the trial of this cause in the Circuit Court, propositions of law were submitted to the court; its holding in respect to these is not complained of; the only insistance of the plaintiff is that the finding of the court was contrary to the evidence.
It appears without dispute that when James C. Goldth waite signed the name Ward, Goldth waite & Co. to the note upon which this suit is brought, he had ceased to be a .member of that firm, and had no authority to make use of its name for any purpose. The signing by him of that name was a forgery. This action is brought upon a forged signature, and, if a recovery can be had, it is by virtue of an estoppel.
The case is different from what it would be if Bemiclc had, after the withdrawal of Goldth waite, signed the firm name to a note, and an attempt had been made to hold Gold thwaite thereon. In such case, the business being still carried on by Ward & Bemick in the name of the old firm, such signature would not have been a forgery; the question would have been simply whether Goldthwaite was bound by a genuine signature.
In the present case the question is, is the defendant bound by a forged signature of his firm name ?
As to all questions of fact presented by the pleadings, the finding of the court is against the plaintiff; this court is called to review the evidence and say, not whether it sustains the finding, but whether it is so inconsistent therewith that the conclusion, reached by the court below must be overturned; and, in so doing, we must presume that the finding of the Circuit Court upon all disputed matters was such as would tend to sustain its conclusion upon the entire case.
The firm had never had any dealings with Tolman or his bank. Goldthwaite had repeatedly, as in this instance, given for his private purpose the firm note to Tolman, but this was done without the knowledge of Ward or Kemiclc, and was fraudulent as to them.
Under these circumstances that Tolman, who saw Goldthwaite sign the note and gave him a check therefor, had, from the circumstances attending its making, notice that the firm name was being used, not for its benefit, but the private benefit of James 0. Goldthwaite, is a conclusion which the evidence sustains.
Neither Tolman nor his bank could have recovered in this case. Can the assignee, Charles %
While it is the case that an indorsee of negotiable paper is presumed to have taken the same bona fide for full value, and in the usual course of business, before maturity, and no proof is, in the first instance, required of these things, yet to this general rule there are exceptions.
As: “ If the defendant shows that there ivas fraud or illegality in the origin of the bill or note, a new coloring is imparted to the transaction. The plaintiff, if he has become innocently the holder of the paper, is not permitted to suffer; but as the knowledge of the manner in which it came into his hands must rest in his bosom, and the means of showing it must be much easier to him than to the defendant, he is required to give proof that he became possessed of it for a sufficient consideration. If he is innocent, the burden must generally be a light one; and if guilty, it is but a proper shield to one who would be, but for its protection, his victim.” Daniel on Negotiable Instruments, Vol. 1, p. 142 and 662; Kirchoof v. Goezlin, 30 Ill. App. 190; Wright v. Brosseau, 73 Ill. 381; Parsons on Notes and Bills, 128-211.
In the present case it does not appear that the plaintiff paid anything for the note in suit.
Tainted with fraud as it was in its inception, an indorsee or assignee can not recover thereon without proving that he gave a valuable consideration therefor. •
There was no evidence as to when or by whom the lead pencil memorandum on the note for $2,500 was made, or that it was true; it can not therefore be considered.
The judgment of the Circuit Court will be affirmed.