Howry v. Eppinger
| Decision Date | 18 April 1876 |
| Citation | 34 Mich. 29 |
| Court | Michigan Supreme Court |
| Parties | John W. Howry and others v. Isaac Eppinger and another |
Heard April 12, 1876
Error to Saginaw Circuit.
Judgment affirmed in each case, with costs.
D. W C. Gage, for plaintiffs in error.
Wisner & Draper, for defendants in error.
Eppinger and Lehman brought action to recover the amount due upon a promissory note signed by the defendants Wiggins, and made payable to the order of defendant Howry. There were three other actions commenced by the same plaintiffs against the same defendants, upon similar notes given at the same time, except that one was signed by Howry and made payable to the order of defendant Wiggins. In all other respects the facts in each case were alike; they were therefore, under a stipulation between counsel, argued and submitted as one case.
These notes were secured by mortgage, and on the margin of each note was endorsed the words "secured by mortgage." Each was endorsed by the payee in blank, and also by Oliver P. Burt, who was also made defendant. The case was afterwards and before trial discontinued as to him, and his endorsement erased.
It also appeared that these notes were by Oliver P. Burt left with Eppinger, Russell & Co., as collateral security for advances before then and afterwards to be made by them to him; that upon the 3d of December following (1873), Burt, by letter, authorized Eppinger, Russell & Co. to negotiate and sell these notes; that upon the receipt of that letter and upon the 13th day of December, Eppinger, Russell & Co. sold these notes to the plaintiffs, for the full amount of them, less the usual discount, credited Oliver P. Burt with the proceeds, and rendered to him a statement of account showing the amount so credited, and to which he made no objection. Upon the 6th of April, 1874, Eppinger, Russell & Co. were notified by Willis Clary that he claimed to own the notes. It also appeared that the mortgage given to secure payment of these notes was executed some time after the execution of the notes, and after they had been left with Eppinger, Russell & Co. as collateral; that the mortgage was given to Willis Clary as mortgagee, and showed that these notes belonged to him. Plaintiffs claimed to be bona fide holders.
Several errors are alleged, which will be noticed in their order so far as deemed material:
First. When the notes were offered in evidence it was objected that they varied from the copy set out in the declaration, in that the words "secured by mortgage" did not appear in the copy. The object in requiring a copy to be set forth in the declaration was for the benefit of the defendant so that he might be prepared to meet the plaintiff's claim. Counsel for defendants admitted at the time he made the objection, that he was not misled by the omission, but insisted upon his legal right to have a perfect copy. We think the defendants have no just cause of complaint, so long as they were fully apprised of the plaintiff's claim, and were not misled in any way or surprised by reason of the omission. They could not insist that every thing appearing upon the face of the notes, either in the shape of embellishments or otherwise, should appear in the copy given. These words were really no part of the note, and it was not necessary that they should appear in the copy given.
Second. Another objection made to the introduction of the notes was, that the endorsements were not proven. The payees had endorsed the notes in blank; they were defendants and did not deny the execution. The notes, after such endorsement, would pass by delivery, and it would not be necessary to prove subsequent endorsements. We see no error in this ruling. This covers the first two objections as noticed in the brief.
Third. That the court erred in not charging the jury in compliance with the third, fourth and fifth of defendants' requests, which in effect were, that the words "secured by mortgage" formed a part of the notes, and were notice to Eppinger, Russell & Co. of the contents of the mortgage, that it was given to Willis Clary, to whom the notes belonged, or that it was at least sufficient to put them upon inquiry, and that if they failed to make such inquiry, then plaintiffs, in either event, could not recover.
As we have already said, the words "secured by mortgage" formed no part of the notes. The object and intent of the parties in putting these words upon the notes was not to limit or impair their value, but to add to it. It was not to notify third parties that the mortgage contained some clause inconsistent with the notes, and which would destroy or affect their negotiable character. One object undoubtedly was, to show they were the notes referred to in the mortgage and thus connect them. But the principal one was, to show that in addition to the responsibility of the makers they were also secured by mortgage. If the makers intended to limit the effect of the notes by the terms or conditions of the mortgage securing their payment, they should have done so by language which could admit of no doubt as to its intent and meaning. We think these words were neither sufficient to...
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Farmers' Nat. Bank of Tecumseh v. Mccall
...and plaintiff brings error. Reversed for new trial. B. B. Blakeney and J. H. Maxey, Jr., for plaintiff in error.--Citing: Howry v. Eppinger, 34 Mich. 29; Fancourt v. Thorne, 9 Q. B. 312; First Nat. Bank v. Mining Co. (Colo. App.) 68 P. 981; Kiskadden v. Allen, 7 Colo. 206; Chicago, etc., Co......
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Farmers' Nat. Bank of Tecumseh v. McCall
......St. Okl. 1903. Eminent authority also supports the rule. that a notation on the corner of a note may not render the same. nonnegotiable. Howry et al. v. Eppinger et al., 34. Mich. 29; First Nat. Bank v. Mineral Farm Cons. Min. Co., 17 Colo. App. 452, 68 P. 981; Chicago Ry. Equip. Co. v. ......
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...this notation did not charge appellant with notice of the terms of the quitclaim deed is fully sustained by the authorities. In Howry v. Eppinger, 34 Mich. 29, suit was by an indorsee upon a promissory note. On the margin thereof was written, ‘Secured by mortgage.’ It was contended that the......
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Drew v. Wheelihan
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