139 Mich. 82 | Mich. | 1905
The Central Savings Bank, plaintiff, sued defendants, George M. O’Connor and William J. Hammond, in assumpsit, upon two promissory notes aggregating, with interest, $1,736.39.
Under a plea of the genéral issue defendants gave notice that as a special defense they would show that these notes were given for the amount of a certain chattel mortgage' upon the property of the J. R. Pearson Company, a Michigan corporation, and certain accounts, assigned to defendants by plaintiff; that O’Connor was the maker and Hammond the indorser of said notes; that the notes were delivered to plaintiff on a parol understanding that in case the J. R. Pearson Company should be forced into bankruptcy by any of its creditors, and adjudicated a bankrupt, the notes would be null and void; and that the J. R. Pearson Company was afterwards adjudicated a bankrupt by the United States district court for the Eastern district of Michigan, in bankruptcy.
Defendant Hammond, a judgment creditor of the J. R. Pearson Company, upon a justice’s court judgment for $400, had levied upon the stock of goods covered by the
This case was before this court in the January term, 1903, and is reported in 132 Mich. 578, and was reversed and remanded for a new trial, because the trial court committed an error in practice in entering a judgment for plaintiff non obstante veredicto when there was no verdict to support it.
Before the second trial defendants sought to amend their plea by a notice that they would show a partial failure of consideration for said notes. The motion to amend the plea was denied. The trial court allowed the attorney for .the defendants, in opening his case to the jury, to make a full and complete statement of all defenses claimed. The plaintiff then asked the court to direct a verdict in its behalf. Thereupon the court clearly and concisely stated the case to the satisfaction of the counsel on both sides, and decided that the defense was not admissible, and directed a verdict for the plaintiff for the amount claimed.
Error is assigned by defendants for the refusal to allow an amendment to the plea, and also for excluding the defense offered and directing a verdict for the plaintiff.
The application to amend the plea came very late, and appeared to the trial court to be an attempt to change the issue after the case had been heard in this court and remanded for a new trial. To deny the amendment was a matter of discretion, and did not in any manner prejudice defendants, for the reason that their broadest claims were allowed to be stated, and, all being considered, the learned trial judge determined that the defense was not available.
The principal error relied upon is as to the instruction of the court to the jury to return a verdict for the plaintiff. The defendants, by the proposed amendment to their plea, and in their opening statement to the jury, offered to show that defendant O’Connor had bid in the property
The judgment is affirmed, with costs.