Cate v. Patterson

| Mich. | Jul 9, 1872

Christiancy, Ch. J.

Defendant in errror brought his action in the court below against plaintiff in error as endorser of the certificate of deposit of which the following is a copy:

“No. 6416. D. L. Latourette, successor of the First National Bank of Fenton, Michigan.

“Fenton, July 18,1871.

“ H. C. Riggs, Esq., has deposited iu this bank five hundred and fifty dollars, payable to the order of Rufus Cate, with interest if left three months, on the return of this certificate.

“D. L. Latourette, Cashier.”

This certificate was indorsed by Cate, to whose order it was payable. The declaration was upon the common counts, with a copy of the certificate and endorsement attached, the plaintiff treating it as a promissory note. Its introduction in evidence was objected to, on the ground that it was not a promissory note within the meaning of Comp. L. of 1857, § J/-161, which allows this mode of declaring upon promissory notes and bills of exchange. The circuit judge held it to be, in legal effect, a promissory note, and therefore admitted it in evidence; and this presents the main question in the case.

We think this ruling of the circuit judge was right, and that the instrument was, in legal effect, a promissory note. It contains all the elements necessary to constitute a promissory note; the statement of the deposit being, in legal effect, no more than a statement of the consideration, and the word “payable,” in the context in which it stands, must be treated as an express promise to pay, as this is the only possible meaning which can be attributed to it. It was payable on demand, no other time being fixed, and the sum was certain, within the meaning of that term as generally used in the definition of a promissory note; the amount of principal was certain at all events, and though, if left for three months, interest was to be added from its date; yet there was no time, whether before or after the expiration of the three months, when, if payment had been demanded, the amount due would not have been absolutely certain, — if before the three months, the stated principal only, — if after that time, the interest to be added to that principal.

We are aware that there are a few decisions, and these are cited by the counsel for plaintiff in error, which might seem to be opposed to the conclusion we have adopted; but the great weight of authority sustains our conclusion, as will sufficiently appear by the cases cited on the part of defendant in error. As we are entirely satisfied the latter are more in accordance with just principle and founded on the better reason, we shall not here enter upon an analysis of the authorities.

It is further assigned for error, that the court refused to charge that, if the jury should find that the certificate was passed to the plaintiff on the second day of October, 1871, and that Latourette failed on the tenth day of the same month, then, the presentment for payment (which was made on the 19th of October, 1871) was not in due time to render the endorser liable.

But it was proved, and not disputed, that when Oate, the endorser, transferred the certificate to the plaintiff (below), on the second day of October, he specially requested the plaintiff not to joresent it until the expiration of the three months, so that it would draw interest, and that the amount of the then accrued interest, eight dollars and two cents, was actually allowed to Cate and paid to him by the plaintiff. He was, therefore, under no obligation to present it for payment until the expiration of the three months; and he did present it the very next day after the three months had expired. The court was, therefore, right in refusing the charge requested.

The defendant below (plaintiff in error) also requested the court to charge, that the plaintiff is hot entitled to recover upon the instrument given in evidence, against the defendant, Rufus Cate, as an endorser, because the same is not in law a negotiable promissory note. In reply to this request the court charged, that the instrument was a promissory note, and that the defendant was liable as endorser upon the same.

This charge is assigned for error, because, it is said, it took the evidence entirely from the jury; and that, even though the evidence clearly warranted such a finding, and, if believed, required it; yet tbe jury might not have believed it, and might have found that defendant was not liable, etc.

But this charge was so evidently in answer to the request, nnd go clearly intended to be a mere reply to the request, that it would be unfair to attribute to it a more extensive meaning; and, interpreted with reference to the request, .all it was intended to assert, and • we think it must have been so understood by the jury, was, that the defendant was liable as an endorser, in the. same manner and to the same ■extent, as if this had been a promissory note in the ordinary form, endorsed by him; and in this, we think, the ■court was correct.

We see no error in the record, and the judgment must be affirmed, with costs.

■Campbell and Cooley, JJ., concurred. ■Cbaves, J., did not sit in this case.