Docket No. 34 | Mich. | Dec 22, 1919
(after stating the facts). Section 12335, 3 Comp. Laws 1915, provides:
“Nothing contained herein shall alter, take away or lessen the effect of a voluntary payment of any principal or interest, made by any person; but no indorsement or memorandum of any such payment written or made upon any promissory note, bill of exchange, or other writing by or on behalf of the party to whom such payment shall be made, or purport to be made, shall be deemed sufficient proof of the payment, so as to take the case out of the operation of the provisions of this chapter.”
The first assignments of error argued by defendant are those relating to the admission of the notes in question in evidence. The case of Rogers v. Anderson, 40 Mich. 290" court="Mich." date_filed="1879-01-28" href="https://app.midpage.ai/document/rogers-v-anderson-7929254?utm_source=webapp" opinion_id="7929254">40 Mich. 290, is cited, where it is said:
“Unexplained indorsements of payments could not be received as evidence, so as to take the case out of the operation of the statute.”
A second group of assignments of error relative to Exhibits 4 and 5 are argued and it is asserted that all testimony touching the said exhibits should have been excluded, counsel saying:
“Without any proof of Pratt’s presence; without proof of any knowledge on Pratt’s part; without any proof of Pratt’s assent, the plaintiff, against defendant’s objection, was allowed to call this proof of payment sufficient to take the case out of the statute.”
We are of opinion that Exhibits 4 and 5 were admissible in evidence; that they were properly identified by the witness, George H. Judson, and that his testimony touching the same was competent. Its weight was of course for the jury. Whether the exhibits in question bearing date the same day as the indorsements upon the notes, taken in connection with the defendant’s indorsement of the check, Exhibit 5, and the payment of said check three days later, were sufficient evidence that defendant had voluntarily paid plaintiff’s decedent both the amount of the check and the amount shown by the indorsements on the notes, by the delivery of this hay and straw, was peculiarly a question of fact' for the determination of the jury.
Complaint is made of some portions of the charge
The judgment is affirmed.