41 Mich. 286 | Mich. | 1879
This was an action of assumpsit brought to recover on a non-negotiable promissory note payable to Mrs. John W. Young and by her assigned to defendants in error as collateral security for the debt of her husband. The defense set up was that the note was given without consideration, and that it was never assigned to the plaintiffs, — defendants in error, — the same having been obtained by them by means of fraudulent representations made by their agent.
On the trial there was evidence given tending to show that the note‘was a gift to Mrs. Young without consideration, and there also was evidence tending to show there was a valuable consideration from the husband of the payee, to whom the note was first made payable, but afterwards and before delivery, changed by inserting before the name of the payee the abbreviation “Mrs.,” thus making it payable to the wife of John W. Young.
There was also evidence introduced tending to show that the defendants below — the makers of the note — were informed of the transfer to the plaintiffs, and repeatedly, by letters to them, recognized and admitted the validity of the obligation, and promising and averring a willing
We have not been able to discover any error committed in the admission of oral testimony or in receiving the various letters and orders admitted between plaintiffs and Mr. and Mrs. Young and between plaintiffs and defendant Hall. Nor do we discover any error in the charge of the court, which submitted and left fairly to the jury every material disputed fact, under instructions as favorable as the defendant was entitled to. The jury were instructed that the plaintiffs were bound by any statements or representations made by their agent to Mrs. Young for the purpose of inducing her to part with the note; that “if he made any representations that were false — that were untrue — that Mrs. Young relied upon, that induced her to part with the note, no matter for what purpose she parted with it, no title whatever, either as collateral security or otherwise, ever vested in these plaintiffs.” What instruction more favorable than this the defendant could be entitled to we fail to discover.
We do not understand counsel to complain of what is here quoted, but that previous to so charging, the court had said: “ Did he, the agent, make any false statements — any false representations — for the purpose of obtaining the note, and which were material?” This was said by the court in what might be called the introductory part of the charge, when the attention of the jury was being directed to the nature of the controversy and the general character of the questions at issue. When the court came to charge'the jury — to give them instructions for their guidance when they would retire to deliberate — nothing was said as to the materiality of the representations, if any were made and found to be untrue. Irrespective of their materiality, the jury were instructed that if false representations were made upon which Mrs. Young relied, and which induced her to part
Anything short of this would be unsafe and would render it exceedingly dangerous for parties to conduct the ordinary business transactions of the day. It frequently happens that representations are made while negotiations are pending, not strictly true. They may relate to the subject matter or have little or no reference thereto; neither party may place the slightest reliance thereon, yet should a dispute thereafter arise,
Another part of the instructions given in this connection and complained of, is what the court said in reference to the order (exhibit “B”)
Upon the question of a want of consideration and the effect thereof, the court charged as follows: “ If it (the note) was a mere gift, no value whatever was given for it: that although it may have been transferred legally
“If it was given for any consideration, then the defense is not made out and your verdict must be for the plaintiffs. i After the note had gone into the hands of the plaintiffs, gentlemen, the defendant had notice of it. He had a duty to perform in that regard, after he had received the notice that Messrs. Johnson & Wheeler had received this paper, and that duty was to disclose to them the conditions and the circumstances under which the note was given, and if he did not do so, and their rights_ as against Young were in any manner jeoparded or frittered away, so to speak; or in other words, if they in consequence of having this note, rested quietly and did not prosecute Young for the purpose of recovering _ their _ debt against him and thereby lost any right against him, then he (the defendant) cannot be heard to say in this court that this note is valueless, — that it was not given for any consideration; because by his own conduct — his own laches, so to speak — he has prevented these plaintiffs from acquiring what they would otherwise have acquired, in reliance upon the promise of the defendant to pay the sum of $1,000, out of which they could have collected their debt. He would be estopped, so to speak, from making any defense of the kind and nature that he makes here to this note.”
It is said that the only evidence upon which this charge was based was that of one of the plaintiffs, who testified that upon receipt of the letters from defendant, agreeing to pay the note, and suggesting no defense thereto, plaintiffs took no steps to collect their claim against John W. Young. This may be true, but the
While all this might not be conclusive, yet if plaintiffs relying thereon took no steps to enforce their claim against their principal debtor, and were injured thereby, they should not be the losers. Just what showing would be necessary to estop the defendant under such circumstances we need not determine, and cannot as the record stands in this case. We discover no error in the record and the judgment must be affirmed with costs.
Exhibit B was as follows:
Detroit, 9 Deo., 1871.
John M. Fitch, Fsq.:
Please deliver to Mess. Johnson & Wheeler or order a certain note for one thousand dollars, placed in your hands in January, 1871, as collateral security to their account against J. W. Young, and oblige
Louisa Young,
John W. Young.