on petition for rehearing. Filed December 20, 1894.
The original brief of the appellee, not by any misstatement, but by so slightly alluding to the most serious question in the case, and so strenuously insisting upon reasons for affirming the judgment upon other grounds, so misled us that that question wholly escaped our notice.
As the original opinion quotes, that brief said that 6i the only question now before this tribunal is as to whether or not the evidence submitted to the jury tending to show that the appellee had a right to recover upon other grounds than the mere exchange of collateral, was sufficient to sustain the verdict returned in this cause.” The fact, always apparent on the record, and in the brief of the appellee, has now for the first time reached our minds, that the note of the Chicago Times was payable September 24, 1889, while the notes made by West, only matured September 14,1889, so that there was an extension of ten days in the time.of payment when the “ Times ” note was taken. On the trial, and in the brief here, that extension of time was relied upon as one of the circumstances upon which the jury should find that the “ Times ” note was entered and accepted as absolute payment of the first note, though it is true also that the brief did contain on the 37th, of 59 pages, this:
“ The Times-West note extended the period of payment for the original collateral note, and in such a case the creditor thereby makes it his own.
The doctrine in such cases is accurately stated in Jones on Pledges, Ed. of 1883, Sec. 719. The rule laid down by Jones, supra, and the cases cited by him, leave no room to doubt that as a matter of law the appellants in the present case appropriated and made their own the West-Times note for $27,500.”
Nowhere, however, in the briefs, are the dates'of the maturity of the notes brought into juxtaposition, and the point made in connection therewith, that there had been an extension of ten days for the time of payment, and therefore the legal consequence followed, which, if true in point of law, would have dispensed with any reference to the jury of the question whether the “ Times ” note was a satisfaction of the “ West-Munroe” note. And so oblivious were the appellee, himself a practicing lawyer, and his counsel, of the significance of this fact, that in the declaration, which is special, stating circumstances, and closing in each of the three counts with an allegation of conversion, the “ Times ” note is twice described as dated September 14, 1888, and payable one year after date, and not otherwise. Yet I say, mea culpa; the brief did make the point with so much of directness that the doctrine of Chicago City Ry. v. Van Vleck, 143 Ill. 480, as to the insufficiency of briefs, does not apply.
Now, as to the effect in law of the “ Times ” note. The “West-Munroe” note belonged to Post and was collateral to a note made by Post, with Riddle as surety, to the bank, for $16,000, dated February 12, 1889, and due in ninety days.
The contract of pledge was such as the law implies, none express being made. Under such contract the bank was bound, if the $16,000 note was paid; to surrender the “ Westhlunroe ” note, or pay what might be the actual damages resulting from failure to surrender. Whatever the bank might do with the “West-Munroe” note, while the $16,000 note remained unpaid, Post could maintain no action based upon any right to possession of the collateral—such as detinue or trover. Donald v. Suckling, L. R., 12 B. Cases (1866) 585; Holgate, L. R., 3 Exch. Cases (1868) 299. The $16,000 note has not been paid by either Post or Riddle; unless satisfied by the transactions in connection with notes made by West, it is still in force., Row if Post can maintain any action it must be either of assumpsit upon the contract, or case upon the duty implied by law. He has chosen the latter; and it is an essential, indispensable element of that action, that Post should have been injured. It is the duty of a servant to be truthful to his master about his master’s affairs, but if the coachman of a widow tells his mistress that she may safely ride out, as the horses are sharp shod and won’t slip, when in fact there are no corks on the shoes, but the ground being dry and soft, none are needed, can she sue?
It has been already decided by this court in the case cited that these several exchanges of notes did Post no injury.
True, the ten days extension of the time of payment was not shown them, but how can Post be harmed by that since the original note has got back to the pledgee ? What the pledgee does harmlessly with the pledge before the pledgor can have any use for it, ought to be no concern of the pledgor. If the thing is ready to be restored, as the contract or duty requires, that should be sufficient. Coggs v. Bernard, 2 Ld. Raym. 909.
We therefore regard that ten days extension as immaterial, in the present aspect of the case.
We have long been familiar with the modern recognition by courts of law of equitable ownership of the cause of action sued upon in another than the nominal plaintiff; and the consequent rejection by such courts, of defenses growing out of transactions between the plaintiff and defendant, after the latter had notice of such equitable ownership. But no case has ever held that a plaintiff suing for the use of another could recover upon a cause of action which he never had, because of anything which had happened between the usee and the defendant.
The petition for rehearing teaches us nothing upon the subject, nor does it convince us that the president of a corporation, whatever the state of accounts between him and the corporation, may make the note of the corporation to himself, and confer upon another, who takes for the debt of the president, a good title. The appellee has no case so far as it is yet shown, and the petition is denied.