Altman v. Fowler

• Decision Date: 27 April 1888
• Citation: 37 N.W. 708,70 Mich. 57
• Court: Michigan Supreme Court
• Parties: ALTMAN ET AL. v. FOWLER.

37 N.W. 708

70 Mich. 57

ALTMAN ET AL. v. FOWLER.

Supreme Court of Michigan

April 27, 1888

Error to circuit court, Manistee county; J. BYRON JUDKINS, Judge.

Action by Isaac Altman and others against George W. Fowler on a contract, which is set out in the opinion of the court. Verdict and judgment for the defendant, and the plaintiffs appeal.

CHAMPLIN J.

The declaration in this case is upon the common counts in assumpsit, and added thereto is a notice as follows " To the above-named defendant: Take notice that on the trial of the above cause the plaintiffs, under the money counts, will give in evidence a certain promissory note copy of which is given below." This notice was signed by the plaintiffs' attorneys. The note reads as follows:

"$130.

MANISTEE, MICH., Oct. 6, 1885.

"Six months after date I promise to pay to the order of M. Cohn one hundred and thirty dollars at the First National Bank of Manistee, Mich., for value received, without any relief whatever from valuation or appraisement laws, with eight per cent. interest from date until paid, and attorney's fees.

"GEORGE R. FOWLER.

"No 770. Due April 9, 1886."

Indorsed on back: "M. COHN; ALTMAN & CO."

The defendant plead the general issue. On the trial the plaintiff introduced and read the instrument in evidence, without objection, and gave evidence of the amount due thereon for principal and interest, and rested his case. The defendant disclaimed any fraud in the transaction in which Cohn procured the note, and rested his defense entirely upon a failure of entire want of consideration for the promise contained in the instrument. The case was tried before the opinion of this court was handed down in the case of Altman v. Rittershofer, 36 N.W 74, on the 19th of January last, in which we held that such an instrument as here set out is not a negotiable promissory note, and consequently it could not, if objected to, be introduced in evidence under the money counts of the declaration. The trial, however, in the court below, proceeded upon the theory that the instrument was a negotiable promissory note, and such theory seems to have been entertained and acquiesced in by both counsel and court. The defendant resided in the township of Manistee, and gave evidence tending to prove that he was induced to give the note in question upon representations made to him by a stranger who called himself M. Cohn. This stranger and another man in his company called at defendant's house, and exhibited some shawls which he represented to be "true Paisley," and some rolls of cloth which he said he would warrant would make a good suit of clothes, including overcoat; and he would take and make the suit for defendant at any time after the Saturday following at rooms which he claimed to have rented in Manistee, for $2.50, and furnish all the trimmings, including a velvet collar. After some conversation respecting the purchase, defendant finally told Cohn that in case he would take the goods back, and give up his note in a reasonable time, if the goods did not prove exactly as he said they were, he would sign the note; but if the goods failed to prove just as he said they were, he never would pay him one dollar, and he wanted Cohn should understand that; that Cohn said: "All right. If I would sign the note, and the goods did not prove exactly as he recommended, and he didn't make them up for that price, and furnish the trimmings and everything, if I would bring them back, he would pay me for all the trouble, and take them back, and give me my note at any time between...