Snyder v. Winsor

44 Mich. 140 | Mich. | 1880

Cooley, J.

Defendants in error brought suit upon a promissory note purporting to be made by Snyder, bearing date October 1, 1871, and payable one day after date. Upon the note was an indorsement of $29.69, under date of July 1, 1873, and another of $24, dated 1874, without month or day. Defendant pleaded the general issue, with notice that he did not undertake and promise, etc. within six years.

The suit was begun May 2, 1879, so that all remedy upon the note had been barred for some time when suit was instituted, unless saved by payments. The statute provides that indorsements shall not be evidence of payments for this purpose (Comp. L., § 7164); and it therefore became necessary for the plaintiffs to make proof of the payments or of one of them, provided the defense of "the statute of limitations was well made.

The plaintiffs insisted before the justice that the notice should have been that the cause of action did not accrue within six years; and that non assumpsit within six years was insufficient. When this objection was made defendant asked leave to amend, but it was denied. Thereupon the case was submitted; there being no evidence of the payments which were indorsed on the note, though a witness testified that no others had been made.

If the notice of defense was technically insufficient, defendant should have been suffered to amend. He gave a notice, the purpose of which no one could have misunderstood, and the objection to it was purely technical. Pleadings in justices’ courts must not be subjected to such strict rules ; it is mischievous to permit it, and defeats the purpose for which these courts are created: Wilcox v. Toledo, etc. R. R. Co. 43 Mich. 584. But we are inclined to hold the present notice sufficient. Defendant thereby apprised the plaintiffs that he relied upon the statute of limitations; and had he said that in the fewest possible words it would have been sufficient. Instead of doing so he undertook to put his notice in legal form, and failed to make it express the exact legal idea. But it nevertheless notified the plaintiffs of the defense relied upon, as completely as if it had been correct by the test of strict rules. This is all that should be required in justices’ courts.

It is claimed in the brief for defendants in error that the evidence that no other payments were made on the note was sufficient to justify the justice in finding that the two which were indorsed were made. But there is no ground for such a claim. There was an entire absence of evidence respecting them; and even if it were admitted they were made, the time of payment needed to be shown, to give them any importance.

The judgment must be reversed, with costs of all the courts.

The other Justices concurred..