Illinois Roofing & Supply Co. v. Aerial Advertising Co.

142 Mich. 698 | Mich. | 1906

McAlvay, J.

Plaintiff, an Illinois corporation, was a creditor of defendant company, a Michigan corporation, for goods sold and delivered. There, was due on account $454.54. Defendant George R. Dater was president, and Clinton G. Cribhs was secretary and treasurer, of defendant company. On December 12, 1902, defendants sent plaintiff the following agreement:

“ Benton Harbor, Mich., Dec. 5, 1902.

“ Illinois Roofing & Supply Company,

“ Chicago, Ill.

“ Gentlemen: In reference to that part of your account against us of invoice of June 26, 1902, amounting to $454.54, we agree to pay you a good cash payment of between $100 and $200 and to furnish you with a note for the balance and accrued interest since account was due at six per cent, per annum, this note to be indorsed by Mr. George R. Dater.

“Aerial Advertising Co.

“C. G. Cribbs.

“Geo. R. Dater.”

On December 20, 1902, defendant company sent plaintiff a draft for $95, and a 90-day note for $359.54, signed by defendant company and indorsed by defendants Cribbs and Dater. This note was returned to defendants with a letter indicating that it was not signed by Dater according to agreement, and ending with the words:

“ I therefore return it and ask you to be kind enough to have him attach his signature to it.”

Defendants did not return the note nor send one in place of it. Credit was given for the draft. Suit was commenced against defendants February 18, 1904, in assumpsit by declaration counting upon this agreement, with the common counts added. Defendants pleaded the general issue. Upon the trial it was admitted that plaintiff was entitled to a judgment against defendant company, and that the agreement was made and executed by all the defendants. Defendants’ attorney in his opening statement further stated, among other things, that the agreement had been fully performed:

“That this is not the debt of Mr. Dater or Mr. Cribbs; that, so far as there is any claim against them, it is because they have assumed to pay the debt of some one else. We sent them a note and complied with the agreement, * * * which they declined to receive, qnd which they expressly returned and repudiated. Therefore we shall insist, if there is any liability at all on the part of Cribbs and Dater, it is because they didn’t pay as much as |100. If the payment was only $95, perhaps those gentlemen would be bound by the amount of $5.”

After the proofs in the case were closed and some discussion by counsel, the court directed a verdict for plaintiff against all the defendants for $404.44, the amount claimed. Afterwards a motion for a new trial and to amend the plea was granted, conditioned upon the'payment of the costs'taxed. This condition was not accepted, and Cribbs and Dater appeal to this court.

But two errors are assigned upon the rulings of the court as to admitting evidence. The first is that on the cross-examination of Mr. Dater the court erred in admitting proof of a demand for a note in favor of plaintiff, after the note defendants delivered was returned. The question was a proper one. Plaintiff was undertaking to show that defendants refused to give a note as agreed, or to return the first note. The second exception relates to admitting a letter from plaintiff to defendant Dater February 27, 1903. The letter was relative to the subject-matter, calling attention, to the fact that the agreement had been ignored, and unless it was complied with suit would be commenced. It was in possession of defendants, and, on demand of plaintiff, was produced and allowed in evidence on rebuttal. There was no error in admitting it.

It is also claimed that the court erred in striking out evidence given on the part of defendants to show want of consideration for the agreement sued upon. The admitted facts in the case show that, when defendants signed the agreement, the account was due; that the writing extended the time of payment for more than three months; that neither the amount promised to be paid nor the amount of the note complied with the terms of the agreement. Under these facts and the pleadings the court was correct in granting the motion to strike out the testimony tending to show want of consideration. The refusal of the court to give defendants’ requests that the writing was without consideration and void for want of certainty was not erroneous.

Whether all the reasons given by the court and his statements made in arriving at his conclusion to direct a verdict for plaintiff were the correct ones or not is immaterial. He was right in his conclusion, and properly directed a verdict for plaintiff. '

The judgment of the circuit court is affirmed.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.