169 Mich. 490 | Mich. | 1912
This action was brought to recover upon an alleged promissory note, a copy of which, attached to the plaintiff’s declaration upon the common counts, reads as follows:
“ Chicago, III., July 18, 1903.
“November 9, 1903, after date for value received we promise to pay to order of A. R. Welsh $1,000.00 at Chelsea Savings Bank, Chelsea, Mich., with interest at 6% after date till paid.
[Signed] “Chelsea Meg. Co., Ltd.
“A. R. Welsh, Sec’y.
“ J. D. Watson, Treasr.”
Indorsed: “A. R. Welsh.”
In 1903 the Chelsea Manufacturing Company, a limited partnership, was engaged in manufacturing sheet metal novelties and automobiles at Chelsea, Mich. A. C. Wiener, of Battle Creek, was president and chief owner. J. D. Watson was treasurer. Defendant, a mechanical engineer, was secretary and one of the managers. P. W. Strong was agent for the sale of the company’s automobiles in Chicago, and R. F. Beardsley was assisting him. The company was short of funds, and Beardsley, in its behalf, applied to plaintiff in Chicago for a temporary loan to be used in repairing an automobile and promoting sales in his agency. Defendant was in Chicago at the time trying to get said automobile in running order. A loan was finally negotiated, for which a note was given for $1,000 indorsed by Beardsley, and signed by defendant as secretary of the company. It is claimed and denied that defendant also indorsed it personally. The note
Testimony was introduced under which it was claimed protest had been waived, and it was sought to prove the note by a sworn copy, supported by other secondary evidence. Defendant’s assignments of error chiefly center around rulings of the court in relation to these two questions. It is urged the judgment should be reversed for the following reasons:
(1) That there is no evidence in this record that defendant indorsed the alleged renewal note involved in this case.
(2) That there was insufficient proof of the loss to permit the alleged copies made by Butzel to be admitted in evidence.
*494 (3) That, even if defendant had indorsed the notes, the neglect of plaintiff to have the note protested released defendant from liability.
(4) That the admission of exhibits, letters, ledger of Chelsea Manufacturing Company, showing account with the Chelsea Savings Bank was clearly error, and most prejudicial.
The first three reasons urged are contingent on there being evidence in the record which raised issues on the propositions stated for the trial court or jury to decide.
It was for the court to determine whether secondary evidence of the note was admissible. In Thomson v. Railroad Co., 131 Mich. 95 (90 N. W. 1037), it was said:
“The question whether the loss has been sufficiently proved must be decided by the court at the trial. It is not a question for the jury. Those relying upon a lost document must establish the execution of the document, its loss, and a diligent but unsuccessful search for it in places where it is most likely to be found.”
The court in ruling on the admission of secondary evidence does not necessarily decide the foundation issues of the case presented by the pleadings, though some of them may be directly involved, but, when a copy or other secondary evidence of a document is offered, it presupposes the existence of an original, which would be the best evidence. It must therefore be shown that the original is lost or destroyed, or otherwise beyond the power of the party to produce it, before secondary evidence can be admitted. This preliminary proof of inability to produce an original document is addressed to the trial judge, who decides from such proof whether the evidence offered is the best evidence obtainable. If so, it is admitted, and is for the jury to pass upon.
Plaintiff testified he gave the note sued on, together with the one given when the loan was negotiated, to his attorneys in Chicago to prepare proof of his claim to be filed in the bankruptcy court in Detroit. Mr. Butzel, an attorney of Detroit, testified to receiving such notes at
There was a square issue of fact as to whether or not defendant indorsed the note in question. He denied doing so. Plaintiff testified that he knew defendant’s signature and had seen him write; that the note came as renewal of a former note indorsed by defendant, following correspondence with defendant upon that subject; and that it
It is admitted that the note in question was not protested when due, but evidence was introduced showing that it was sent to the Chelsea Savings Bank, the place of payment, and defendant notified that it was presented for payment; that he wrote requesting an extension of time on the note, stating that he had asked the bank to hold it until they heard from the plaintiff “or ourselves to the contrary,” adding:
“We trust, however, we can close matters up this week, but don’t believe it will be in time to take care of the note on the 12th.”
Defendant was secretary and a manager of the company, and knew of its financial affairs He had notice that this note was presented at the place of payment when due, that the company had no funds on hand to pay it and could not pay it, and he asked for time. We think, under such testimony, there was evidence of waiver sufficient to submit the question to the jury under the authorities reviewed in Bessenger v. Wenzel, 161 Mich. 61 (125 N. W. 750, 27 L. R. A. [N. S.] 516).
A quantity of correspondence, mostly between plaintiff and the manufacturing company, was introduced in evidence under objection. Much of this correspondence was dictated by defendant. We do not deem it necessary to review these objections in detail, but conclude that the letters, if not properly proven at the time, were later identified by defendant or the stenographer of the company, or shown to have been received in due course of mail in answer to previous letters. Several letters, not signed by
A page of the ledger of the manufacturing company was used by plaintiff to refresh defendant’s recollection when examining him as a hostile witness, and, after being identified by him, was introduced in evidence for the purpose of showing his knowledge of the financial condition of the company and the fact he knew it had no money in the Chelsea. Savings Bank to meet the note when due and presented for payment. For that purpose we consider its admission was not error. Defendant was a manager of the company, acquainted with its financial condition, assisted in the endeavor to raise money for it, and asked for an extension of time on its paper.
The issues involved in the case were submitted to the jury under a full and careful charge, explaining the principles of law applicable to such issues, and we find in the record, taken as a whole, no prejudicial error.
Judgment is affirmed.