Docket No. 17 | Mich. | Oct 28, 1902
(after stating the facts). 1. Plaintiff made its prima facie case by introducing the note in evidence. Defendants thereupon moved the court to direct a verdict for the defendants on the ground that the plea and notice showed that the defendants were husband and wife, and the duty rested upon the plaintiff to prove such a consideration as would bind her. Upon its face the note was hers, and it imported a consideration paid to her. It was indorsed by her husband. There was no presumption against the legality of such a note. The burden rested upon the defendant to prove facts which would relieve her from liability. The motion was properly overruled.
2. The defendants then entered into the merits of the controversy, and testimony was taken; the cashier of the bank and Mr. and Mrs. Miller giving testimony. The cashier gave the following testimony in regard to the transaction:
“Mrs. Miller came and asked me if she could borrow a thousand dollars from the bank. I says, ‘ What on ? ’*567 and she says, ‘ On my note.’ I says, ‘ On what security ? ’ She says, ‘Ain’t .my note good ? ’ I says, ‘ I presume it is, Mrs. Miller, but we are in the habit of having some collateral security or indorser on notes of any size.’ ‘Why,’ she. says, ‘you didn’t ask me for any security on that $200.’ I said, ‘That was a small amount, and I knew you were all right; but I think on an amount of this size our people would want some security.’ She says, ‘ I don’t know what security to give you; haven’t any to give you that you would take.’ I says, ‘ Could you give us an indorser ? ’ She says, ‘ I don’t know who to ask to indorse.’ I says, ‘Wouldn’t Mr. Miller indorse for you ?’ She says, ‘ I presume he would if I would ask him, but don’t want to ask him to indorse my note.’ I took her application down on the book without indorser, and says: ‘ If you want me to submit your application in this shape, will submit it, but am afraid our people will not take it. Think Mr. Miller would not hesitate to indorse the note, and, if he would, thinkthey would take it.’ She says, ‘You may put it down with Mr. Miller’s name;’ and I put it down, and it was passed upon by tbe committee favorably. The note is dated on the 24th of February, 1893, the same date of the application.”
He further testified that he relied upon her statements in making the loan, and understood that .the money was obtained for her separate estate. Mrs. Miller did not deny this testimony of the cashier. She did not tell the cashier that the money was for her husband. If she obtained the money representing that it was for herself individually, and for her separate estate, she will not be heard to defend on the ground that her husband persuaded her to take this course, and to obtain the money for him. She herself testified that she was under no threats or coercion. It is evident from her own testimony that she gave the cashier to understand that she was acting in her individual capacity, and desired the money for her own use in regard to her separate estate. We think the court committed no error in leaving the question to the jury.
3. Conversations which took place between the defendants were incompetent, since no attempt was made to show that they were either in the presence of, or were communicated to, the cashier of the bank.
Judgment is affirmed.