Lobdell v. Merchants' & Manufacturers' Bank

33 Mich. 408 | Mich. | 1876

Marston, J:

In this case it is claimed that the note sued upon has been paid so far as plaintiff in error is concerned. It is a sufficient answer to this to say that the court below has not so found, nor does such a conclusion follow from the facts found.

It is claimed that the court erred in admitting in evidenee the promissory note sued upon, without proof of the endorsements or signatures of the endorsers. The suit was brought against the makers and all the endorsers but one, and his endorsement was admitted to be genuine. The execution of the note and endorsements were not questioned in the pleadings. Where the action, as in this case, is brought against the makers and endorsers,, under the plea of the general issue each defendant thereby admits that he signed the instrument as alleged in the declaration, and also that it was executed by the parties declared against.— Pegg v. Bidleman, 5 Mich., 29.

It was also claimed that there was no proof offered showing-any co-partnership between defendants Lobdell and Stevens as alleged in the declaration. No such proof was necessary. The admission of the execution was an admission that it was executed by the defendants by the name and description alleged in the declaration. — Pegg v. Bidleman, supra.

It is also claimed that the plaintiff had no right to sue this note in its own name and for its own benefit. Under the finding of the court we think it had the right to sue and collect in its own name. — Brigham v. Gurney, 1 Mich., 349.

The only other objection made in this court is to the admission of the duplicate notices of protest in evidence. The record states when these notices were offered that the “defendant’s counsel objected.” It does not appear that any particular objection or reason was given why they were incompetent. The objection was too general. The particular ground of their incompetency should have been pointed out so that the party offering them might have had an opportunity to supply the defect if in his power so to do.

The judgment must be affirmed, with costs.

The other Justices concurred.