| Mich. | Jul 9, 1860
Lead Opinion
IjThe rules of pleading, when applied to justice’s courts, have always been extremely liberal, and we are not disposed to regard the declaration in this case as insufficient.
But a cause of action must be as fully proved in one
To charge an endorser, for example, several distinct things are necessary, no one of which can be disregarded, and no one of which can, therefore, when proved, raise any presumption of another. These facts to be proved are not only the making of the contract of endorsement, but presentment of the note at maturity for payment, a neglect or refusal- to pay when presented, a notice giving a sufficient description of the note and distinctly showing its dishonor, and service of such notice within the proper time personally, or at the residence or place of business of the endorser, or by mail where it is properly mailable. These are all legal conditions, which, unless waived, must be strictly complied with, in order to charge the endorser at all. And proof of performance of any one or more of these conditions has no tendency whatever to prove a compliance with the rest.
In the case before us it is not seriously claimed that all these conditions, necessary to charge the endorsers, have been proved. But it is claimed that this court has decided that, in such cases, we can not weigh the testimony, and determine whether it establishes any fact satisfactorily or or not. It is undoubtedly true that, where the court below finds facts upon pertinent evidence, we cannot review that finding in this way. To the cases heretofore decided by us on that point we are entirely disposed to adhere. If there is any evidence tending to prove a fact, and the court below regards it as proved, we cannot say it should have required more. But no court has a right to assume a fact without any evidence legally tending to prove it, or to dispense with the proof of every distinctive condition affixed to an agreement. And where a court holds that an endorser may be charged without legal notice, it is an error of law, and not a mistaken view of facts.
Dissenting Opinion
dissenting:
It is objected the declaration does not state that payment of the note was demanded, at the office of ’ C. & A. Ives, when it became due, and notice thereof was given to the defendants.
The statement of the declaration is, that the note was made payable at the office of C. & A. Ives, and that when it became due and payable the maker thereof refused to pay, of which the defendants had notice. This is sufficient in justice’s court, where the pleadings, at the election of the party, may be either written or verbal, with the exception of notices of title to land, which must be in writing: — Comp. L. § 8714. The broadest intendment is always made in favor of such pleadings, and it is to be inferred from the declaration that the note, when it became due, was presented at the office of C. & A. Ives, and payment demanded. In Barbour v. Taylor, 1 Mich. 352, the plaintiff exhibited the note, and stated that he declared on it against defendant as indorser. There was no statement of non-payment by the maker, or notice to the indorser.
The evidence on which the justice rendered judgment can not be reviewed on a writ of error. It was so held by this court in Miller v. Chaffee, 1 Mich. 257; and Elliot v. Whitmore, 5 Mich. 532. I think these decisions right in principle, and see no good reason for overruling them. I think the judgment should be affirmed.