216 Mich. 472 | Mich. | 1921
The plaintiff has brought this case here by writ of error to review a judgment for the defendant of no cause of action. The case originated in justice’s court. The declaration was on all of the common counts in assumpsit, and upon the following instrument which was filed with the justice:
“Kingsley Mich., August 31, 1918.
“$161.30.
“On or before ninety days without grace after date, for value received I promise to pay to the order of*474 George W. Parker one hundred and sixty-one and thirty one-hundredths dollars, with interest at the rate of seven per cent, per annum, payable annually. And for the purpose of securing the payment of said sum I do hereby, sell and mortgage unto the said George W. Parker the following property now in my possession and situated in the township of Paradise, county of Grand Traverse, State of Michigan, and free from all incumbrances, to-wit: . One hundred fifty bushels of potatoes. Said first party has the option to deliver one hundred fifty bushels of assorted potatoes or pay the note in full. And it is hereby agreed that if default is made in the payment of said note or any part thereof or if any attempt be made to remove or dispose of said property or if the .said party of the second part shall at any time deem himself insecure from any cause, then said George W. Parker or their agents are hereby authorized to take possession of said goods and chattels and sell the same at public vendue or private sale at once and whatever money arising from such sale to retain a sufficient amount to cover debt with costs and all charges. The undersigned hereby agree to pay any deficiency. And I hereby certify that the consideration named was actual and adequate.
“Ray Baldwin.”
In so far as this instrument is concerned, the plea was the general issue only. The case involves questions of practice and as to which party had the burden of proof at the trial. It will clear the atmosphere somewhat if we determine the nature of this instrument. Counsel call it a “promissory note,” and a “mortgage note.” That it is not a promissory note seems very clear to us. A promissory note may be defined to be a written unconditional promise by one' person to pay to another person therein named, or order, a fixed sum of money, at all events, and at a time specified. No contract or agreement is a promissory note which does not provide for the payment of money, absolutely and unconditionally. See definition of a promissory note in our negotiable instruments act
An examination of the record shows that, although the instrument was by court and counsel frequently called a promissory note, yet the case was tried upon the theory that the paper was a contract, and that plaintiff had the burden of showing a breach of it by the defendant. The plaintiff first called the defendant for cross-examination under the statute, and not content with proving defendant’s signature to the paper and then resting his case, he sought to show by him that he had never performed the terms of the contract by the payment of money or the delivery of potatoes. The defendant claiming that he had delivered potatoes in satisfaction and performance of the contract, and which were accepted by plaintiff, the plaintiff then was sworn and testified to the contrary. There was testimony pro and con upon this question. At the close of plaintiff’s case he asked for a directed verdict in his favor, which was denied, the court saying:
“I don’t think I can say, as a matter of law, that Mr. Parker didn’t accept the potatoes, or that he did accept them.”
The défense then put in its testimony, including testimony of the bad reputation of plaintiff for truth and veracity.
In submitting the case to the jury the trial court stated that the only question for them to determine was the single question of the delivery or non-delivery of the potatoes, it being conceded that no money had been paid. The claims and positions of the parties
“If you believe that the defendant, at the time he made this visit to' the plaintiff’s home, offered the plaintiff those potatoes in full satisfaction of this obligation, and that plaintiff then and there accepted them in full satisfaction of this obligation, then of course your verdict would be one in favor of the defendant, no cause of action.
“If you should find that the plaintiff did not at that time accept those potatoes in full satisfaction, then your verdict would be one against the defendant.”
The court concluded its charge as follows:
“The defendant has handed up a request which I read to you. I have covered it, but I read it to you as stating the law as it is.
“ ‘In this case the burden is upon the plaintiff to prove his case by a preponderance of evidence. And if after carefully considering all of the evidence given herein by both sides, you are unable to say whether the plaintiff or the defendant is right in his contention, the plaintiff has not proven his case by a preponderance of evidence. And your verdict should he one for the defendant.’
“That is a request of counsel and I think it states the law.”
The plaintiff assigned error as follows:
1. That the court erred in denying plaintiff’s motion to direct a verdict in his favor. We do not think that the court erred here. It is very seldom that the court is justified in directing a verdict for a plaintiff at the close of his case. Here a question of fact was involved, and the defendant had a right to be heard in his defense.
2. The second assignment of error is to the effect that the court erred because it did not instruct the jury that plaintiff had declared on a promissory note, and defendant had pleaded the general issue, and given notice under said plea that he would prove and
3. Did the court err in giving defendant’s request to charge as above set forth? We think not. The case had been tried by the plaintiff upon the theory that the defendant had breached the contract, and was therefore indebted to the plaintiff, and upon the whole record it was proper to charge the jury that “the burden was upon the plaintiff to prove his case by a preponderance of evidence.” By the plea, and the manner in which the case was tried, the jury were called upon, under proper instructions, to pass upon the plaintiff’s cause of action; and to hear, try and determine the matters set forth in the declaration, which was that the defendant was indebted to him as therein set forth. The general issue puts in issue everything necessary to be shown by the plaintiff to make out his case. Kinnie v. Owen, 1 Mich. 249. See, also, the many cases cited by the compiler in note to section 12463, 3 Comp. Laws 1915. Where plaintiff, as in this case, assumes the burden of proving nonpayment, he cannot invoke Circuit Court Rule No. 23 as to affirmative defenses.
We find no reversible error in the record, and the judgment of the circuit court is affirmed.