Soper v. Mills

50 Mich. 75 | Mich. | 1883

Graves, O. J.

Tbe plaintiff recovered judgment before a justice of tbe peace, and tbe defendant appealed, and in tbe circuit court tbe trial was on tbe original pleadings. Tbe plaintiff relied on an instrument^* wbicb purported to bave been given by defendant to one Colbatb for an organ, but tbe court refused to admit it in evidence and ordered a verdict for tbe defendants. In making this ruling it seems to bave been considered that tbe declaration failed to show a cause of action in tbe plaintiff.

If the statement of tbe claim was sufficient for a recovery before tbe justice it was sufficient on tbe appeal, and we think it was. It is needless to repeat or cite what has been said so often concerning tbe liberality with wbicb such proceedings are to be treated.

Besides orally stating that be declared on tbe common counts tbe plaintiff filed tbe paper in question with tbe justice as a specification of the exact nature of tbe demand or cause of action, and tbe defendant was not misled. He regarded this instrument as tbe cause of action, and so affirmed in bis affidavit denying its genuineness. It was tbe very foundation of the action and was in substance the declaration. Both parties so understood it. Whether it may be construed as a promissory note is not now a material question. It is at least a contract sufficient to sustain an action and on which a suit could be maintained by the plaintiff as-transferee, so far as the matter is one of form, — and that is sufficient now; according to the terms it was payable to-bearer, but when the plaintiff sued upon it and filed it with the justice it bore this indorsement: “ Without recourse. Gr. B. Colbath.” The fair import of it was, when viewed as the substance of a declaration before a justice, that the plaintiff was the transferee. There was no' demurrer for want of fullness or certainty, and under the rules for construing pleadings before justices of the peace we think there was sufficient in what was regarded as the plaintiff’s claim or demand to admit proper evidence that he was the lawful transferee and holder. We think that the instrument should have been admitted and that the plaintiff should have been given opportunity to make out a case upon it if able to do so.

The state of the case forbids an examination of any other questions now.

The judgment should be reversed with costs and a new trial granted.

The other Justices concurred.

* The instrument was as follows:

$80.00.

Sheridan, Mich., June 15th, 1881.

Six months after date I promise to pay Geo. R. Colbath or bearer eighty dollars, value received, with interest at seven per cent, per annum, and ten per cent, after due.

Payable at the Fremont, Michigan.

The instrument hereinafter mentioned shall remain the property of Geo. R. Colbath and subject to his direction till this note is paid in full, it being optional with Geo. R. Colbath upon default of payment to take possession of said instrument or collect this note, and in case he shall take such instrument, said Geo. R. Colbath shall not be liable to refund any moneys theretofore paid for said instrument, but same shall be deemed paid for rent of same.

S. B. MILLS.

Style 9, organ No. 79,643.

Residence 3 miles E and 1 mile N Fremont, as his bill of particulars.

[Endorsed] /‘Without recourse, G. R. COLBATH.”