JoDaviess County IL Archives Court.....Gilpatrick, V Foster 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 25, 2008, 12:47 am

Source: Records Of Cases Illinois
Written: 1850

John F. Gilpatrick for the use of Joseph Cogwill, plaintiff in error, v. 
George Foster, defendant in error.

Error to Jo Daviess.

An endorsement of a credit upon a note, is like a receipt, subject to 
explanation, and where wholly uncertain, unless explained, must be rejected as 
a nullity.

This was an action originally commenced before a justice of the peace. From 
his decision an appeal was taken to the Circuit Court of Jo Daviess, and came 
on for trial, without the intervention of a jury, before Sheldon, Judge, at 
the March
term, 1850, of said court. An issue was found for appellant, and a judgment 
was rendered against Foster, for the sum of thirty-three dollars and seventy-
three cents. A motion for a new trial was overruled.

The bill of exceptions shows a bill executed by Foster to Gilpatrick or 
bearer, as follows:

"One day after date I promise to pay John F. Gilpatrick, or bearer, ninety-
seven dollars and 17/100 for value received," dated third of January, 1848, 
which was the only evidence offered by the plaintiff.

The defendant insisted upon the allowance of certain sums endorsed upon the 
note as credits; which endorsements are as follows:

"May 17, 1848. Received on the within, 14.70 cents." 
"August the 4th, 1848. Received on the within, 50" 
"April 18. Received on the within, 5.00."

The plaintiff asked leave of the Circuit Court to amend the endorsement on the 
note, which reads, "Received on the within, 50," so as to make it read fifty 
cents; which was denied. All the endorsements were read by the defendant, 
which was all the testimony offered. The error assigned was the allowance of a 
credit of fifty dollars by the Circuit Court upon the strength of the 
endorsement made on the fourth of August, 1848.

Higgins & Stroller, for plaintiff in error:

The note constituted a good cause of action for the amount. The endorsements 
thereon were in the nature of receipts, and if there was any ambiguity 
whatever in the case, it was on the part of the defense.

The endorsement was no part of the note: 21 Vermont, 222; McDaniels v. Lapham, 
1 Aiken, 311; 2 Mass., 397; 5 Iredell, 276.

The endorsement is in the nature of a receipt and is ambiguous: 15 Verm., 215; 
1 D. Chip. R., 227.

T. Campbell and E. S. Leland, for defendant in error.

Trumbull, J. This was an action originally commenced before a justice of the 
peace, on a promissory note for ninety-seven dollars and seventeen cents. The 
only question in the case arises out of an endorsement on the back of the 
note, which is as follows: "August the 4th, 1848. Received on the within, 50" 
There is no dot or mark of any kind either before or after the "50" to 
determine whether it means fifty dollars, fifty cents, or fifty something else.

There were some other credits upon the note, but not in any manner connected 
with the one in question, so as to afford the least clue to its meaning. The 
only evidence in the case was the note with its endorsements, and the Circuit 
Court held the endorsement in question to mean a credit of fifty dollars, 
which still left a balance due the plaintiff, after deducting the other 
credits about which there was no controversy. Nothing can be more uncertain 
than a credit of "50" on the back of a note. It may mean fifty pounds, fifty 
bushels, or fifty anything else, though it was most probably intended for 
fifty dollars or fifty cents, but which, if either, we cannot tell, and 
because it is wholly uncertain, the credit, unless explained, must be rejected 
as a nullity. "If an agreement be so vague and indefinite, that it is not 
possible to collect the full intention of the parties, it is void; for neither 
the court nor jury can make an agreement for the parties: Chitty on Contracts, 
73; Wainwright v. Straw, 15 Vt., 219.

An endorsement of a credit upon the back of a note is no part of the note 
itself. The plaintiff's cause of action was made out by the production of the 
note, and though the defendant was entitled to the benefit of the credits 
endorsed upon it, if intelligible, yet it was no part of the plaintiff's case 
to explain them for the benefit of the defendant.

The endorsement of the credit upon the note being in the nature of a receipt 
for money, is subject to explanation by parol, and if the defendant can 
explain what it means, he will be entitled to the benefit of it, otherwise it 
must be rejected as a nullity.

Judgment reversed, and cause remanded.

Judgment reversed.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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