Weaver v. Bromley

65 Mich. 212 | Mich. | 1887

Morse, J.

The plaintiff sued the defendant in justice’s ■court in assumpsit upon a promissory note as follows:

“$50. Hesperia, Michigan, April 28, 1885.

“ Nine months after date I promise to pay to the order of Henry Bromley, or bearer, fifty dollars, at seven per cent, interest. Value received.

“Alphonzo C. Gowell.”

This note was indorsed on the back: “H. Bromley.”

The defendant pleaded the general issue, and filed an affidavit alleging that the note had been altered since he indorsed it, and that he did not sign it as it then appeared. He also denied in said affidavit that he had ever received any notice of the dishonor, protest, or non-payment of the note since it matured. Upon an appeal to the circuit court for the county of Oceana, and a trial there had upon the issue joined in justice’s court, before a jury, the verdict and judgment were in favor of the defendant.

The alteration claimed in the note was the insertion of the words “or bearer.” The court correctly instructed the jury that -such change, if made, was not a material alteration, and would not avoid the liability of the defendant upon the note.

Upon the trial the wife of the plaintiff testified that she was an equal copartner of her husband in the store kept by him,¹ and that the note in suit was purchased with goods out of the store, and charged to partnership account, and no charge was made to her husband, the plaintiff, to his individual account, of the goods exchanged for the note.

The counsel for defendant then ask id her this question:

“ Q. The note being bought with the goods out of the store in which you are a part owner, don’t you think you are a part owner in the note now?

“A. Taking that view of it, Mr. Rutherford, perhaps I may be. I am a partner in the store and- goods.”

On redirect examination she testified that she never claimed any interest in the noté, — did not claim any interest in it when suit was brought, and did not claim any interest in the-note at the time she was testifying. Notwithstanding this disclaimer, the court submitted the question of the ownership of the note to the jury, and instructed them that, if they found it was owned by the copartnership, the plaintiff could not recover. This was clearly erroneous.

In regard to the dishonor of the note, and the proceedings-taken to fasten the liability for its payment upon the defendant, William Tiffany testified that he made a demand for payment upon Gowell, the maker, at his residence, on Saturday evening, January 30, 1886, at 7 o’clock p. m. On the same night, about 11 o’clock p. m., he deposited the notice, directed to defendant, in the post-office at Hesperia.

The notice received by defendant was dated January 30, 1886, and stated that demand was made upon that day and refused. The defendant claimed that he received this notice-on the twenty-ninth day of January, 1886, one day too early, and that the envelope directed to him inclosing said notice was postmarked January 29. He testified that at the time he received it he made the following memorandum upon the envelope:

"I received the within on the twenty-ninth day of January, 1886, as postmarked on the face of this envelope.”

The envelope and memorandum were received in evidence, against the objection of plaintiff’s counsel.

It was a material issue on the trial whether this nolice was-received on the twenty-ninth or the thirtieth, and the court instructed the jury that, if they found the twenty-ninth to-be the day it was received, the plaintiff could not recover.

The postmaster at Hesperia testified that he thought the letter was put in on the twenty-ninth, but had no indcpendent recollection of the date outside of the stubs and records-of postal orders and postal notes issued on the thirtieth, which stubs and records did not bear the postmark like the one on the envelope. On cross-examination he stated that he did not stamp the dates on the stubs and records; they were written in with a pen. The envelope might have been stamped, and the date on the stamp not been changed from the day before.

The memorandum should not have been admitted in evidence. The witness had a clear recollection of the date .upon which he received the notice, and did not desire or need the memorandum to refresh his recollection, and it was not used- or offered for that purpose. It was introduced and received as original evidence in corroboration of his own statement. It was evidence made by himself in corroboration of himself. It was no more admissible than would have been his oral statement to the same effect made on that day to a third party.

The judgment must be reversed, and a new trial granted, with costs to plaintiff.

The other Justices concurred.

1 See Artman t. Ferguson, 40 N. W. Rep. 907, holding that such a partnership cannot exist.