135 Mich. 479 | Mich. | 1904
{after stating the facts).
It is conceded that failure to demand payment and give notice is waived by a subsequent promise by the indorser to pay the note, when he makes such promise with full knowledge of the facts. Porter v. Hodenpuyl, 9 Mich. 11; Newberry v. Trowbridge, 13 Mich. 263; Parsons v. Dickinson, 23 Mich. 56; Perkins v. Cheney, 114 Mich. 567 (72 N. W. 595, 68 Am. St. Rep. 495); Loose v. Loose, 36 Pa. St. 538. See Schierl v. Baumel, 75 Wis. 69 (43 N. W. 724); Low v. Howard, 10 Cush. 159. The same principle was enunciated in Sutton v. Beckwith, 68 Mich. 303 (36 N. W. 79, 13 Am. St. Rep. 344), where it was held that the maker of a note purchased in. reliance upon his statement that it was all right was estopped to assert its
In Fox v. Citizens' Bank & Trust Co. the suit was-between the beneficiaries of the notes, payable to one Anderson as trustee, and the transferee of Anderson. It was held that ‘ ‘ the fact that the notes appeared on their-face to be payable to him as trustee would put the transferee on notice, and the claim of the beneficiaries would be superior.”
In Metcalf v. Williams it is held that the addition to-the signature of the word “Agent,” “Trustee,” “Treasurer,” etc., does not release the agent from personal liability where the principal is not disclosed; the appendix being regarded merely as descriptio personen. The court says:
“But if he be in fact a mere agent, trustee, or officer of some principal, and is in the habit of expressing in that way his representative character in his dealings with a particular party, who recognizes him in that character, it would be contrary to justice and truth to construe the documents thus made and used as his personal obligations, contrary to the intent of the parties.”
Under the principle of this case, if the plaintiff dealt with Mr. Fedewa in the capacity of a trustee, and recognized the funds as trust funds, and knew that they were trust funds, certainly it could not appropriate them to the
In Keidan v. Winegar the maker of the note, who affixed the word ‘ ‘Agent ” to his signature, was sued upon the note. It was held that he might show in defense that the note was that of his principal, the real party to the transaction, and that the payee had knowledge thereof.
None of the other cases cited are stronger than these three. In none of them did the question here involved arise. If the defendant could show that these funds in fact belonged to Mr. Fedewa, and that the bank knew it, then the question would arise as to whether the failure to so apply the funds operated as a discharge of the indorser, and whether he waived notice and demand with knowledge of that fact.
Judgment reversed, and new trial ordered.