Garton v. Union City National Bank

34 Mich. 279 | Mich. | 1876

Grates, J:

The bank sued, and was allowed to recover, on an instrument of the following tenor:

“$1,000. Union City, Micii., May 12, 1873.

“On demand, - days ’after date, I promise to pay to C. T. Allen, cashier, or order, one thousand dollars at Union City National Bank, value received, with exchange on New York, and interest at ten per cent, after maturity.

“Jane Garton..

“This note is to be used as collateral security to A. Climie5s notes.55

The declaration set forth the instrument, and averred that it was made to the bank and received by the bank as collateral security for a demand it then held against Climie and for advances it might make thereafter to Climie, and then alleged certain obligations from Climie to the bank as covered by the note and charged to be due and payable. The general issue was pleaded, and the cause was tried by a jury.

A certificate of the comptroller of the currency, of the duo organization of the bank in 1871, and of its right to carry on banking under the federal act, was admitted under objection. The point made against the admission of this .evidence has no force. The certificate seems to have been unobjectionable. But whether it was or not, the case did not require its introduction to show corporate existence. For the purpose of the action that stood admitted. — § 6547, G. L.j also Act 109, L. 1871, p. 176; Thatcher v. West River Nat. Bk., 19 Mich., 196; Society for Propagation of the Gospel, etc. v. Town of Pawlet, 4 Pet., 480.

It is said the note was wrongly admitted because it was made payable to the order of Allen, and was not indorsed by him. No indorsement was necessary. The instrument plainly indicated that it ivas made to Allen, not as an individual, but as a bank officer, and that it was a contract with the bank.

The evidence admitted in explanation of the true consideration of the note, and the identity, nature and amount of the Climie demands referred to, was not objectionable. The purpose was to correctly apply the note to the transactions it indicated it was intended to cover, and confine it to the very claims it purported to secure, and not to alter its terms or in. any way inflame the liability of Mrs. Gfarton or prejudice her rights. It indicated on its face, or rather by the memorandum connected with it, that it was to bo carried out and enforced restrictively as against Mrs. Garton, and with, reference to particular bank demands against Climie, and the intent could not be carried out and strict protection be accorded to Mrs. Garton’s rights without showing the facts. The evidence was favorable to her interests, and, as we think, was not objectionable under the rules of law.

An objection is made that two paragraphs of the charge, which are pointed out, were oral, and it is claimed that the judgment should be reversed on that account. We do not think so. No objection was raised that these passages were not reduced to writing, until after the jury had gone out, and we think the point was waived. We must see a strong case before we overturn a verdict for such a cause.

On cross-examination, Mr. Allen, the cashier, testified that Climie sent to the bank fifteen dollars by letter, and requested the bank therein to accept the money as a consideration for extending his notes; that no agreement was made, however, for an extension, and no extension given; but the fifteen dollars was placed to Climie’s credit by endorsement on his note. He also stated that Climie was not advised that the bank refused to extend, and that ho presumed Mrs. Garton was not aware of the circumstance.

The counsel for plaintiff in error based a request on this testimony, to the effect that the retention of the fifteen dollars and use of it, and the omission to advise Climie that the bank refused to extend, amounted to an agreement to extend, and released Mrs. Garton from liability on account of one of Climie’s notes, namely: one for five hundred and fifteen dollars. This was refused, and the court think properly. Whether in case a binding agreement between Climie and the bank for the extension without Mrs. Garton’s assent were admitted, she would have been released, under the circumstances, we do not consider. But it' is plain that unless there was what constituted in law a binding agreement of that kind without her assent, the position taken by counsel was not tenable.

Now the witness swore that the bank refused to assent to any extension, and did not assent to it, and there was no showing that Olimie considered that an extension was agreed on. He sent money to obtain an extension, but the bank declined to extend, yet kept the money and applied it -on his debt, and it did not notify him that his proposition ivas refused. This keeping of -the money and omitting to notify him of the rejection of his proposition, ivas evidence tending to show an acceptance of the request, and under certain circumstances such evidence would be sufficient to imply or raise an inference of acceptance of a proposal to extend. And in this case it was subject to be considered with the other facts, and among them the statement of the cashier that the bank did not assent, upon the question as to whether in truth an agreement to extend was actually consummated. But this retention of the money and omission to notify, etc., cannot be considered as in itself a binding agreement on the part of the bank. The request, however, proceeded on the theory that it appearing that the bank kept the money and applied it as payment on Olimie’s debt and did not notify him of non-acceptance, a binding agreement to extend was thereby established notwithstanding the bank in fact dissented from the offer to extend, and notwithstanding the absence of all proof that Olimie understood that an extension was agreed on. ' If the bank did not assent to an extension, and Olimie did not understand that it did so; and did not understand or suppose that any extension was secured, it would be somewhat singular to assume that after all there was such an extension by agreement between those parties.

What has been said covers all the points deemed Avorthy of comment, and the result is that Ave find nothing in the record to overturn the judgment.

The judgment should be affirmed, with costs.

The other Justices concurred.