Bannister v. Rouse

• Citation: 44 Mich. 428,6 N.W. 870
• Court: Michigan Supreme Court
• Decision Date: 20 October 1880
• Parties: BANNISTER v. ROUSE.

6 N.W. 870

44 Mich. 428

BANNISTER v. ROUSE.

Supreme Court of Michigan

October 20, 1880

Where certain undertakings, given on account of the purchase price of a piano, provided for the payment of a certain sum at a certain time, and in case of default made it optional with payee to retake possession of the instrument, title to remain in him until payment, held, that the money was not payable absolutely, so as to make an indorsement necessary, but they were properly assignable as choses in action.

Error to Kent.

F.A Maynard, for plaintiff in error.

E.A Maher, for defendant in error.

GRAVES J.

Rouse recovered against Bannister the sum of $30.40 besides costs before a justice of the peace upon certain written undertakings given by Bannister to one Bullock and the judgment was affirmed in the circuit court on certiorari. Bannister then brought error. The title of Rouse was by assignment and not indorsement and the claim is made that the papers were negotiable by the law merchant and were not suable therefore in the name of the transferee without indorsement. The instruments sued on were two of a series of 20 of the same kind given on the purchase of a piano. It was provided in each one that the piano should remain the property of Bullock the payee until payment, and that in case of default in payment that it should be optional with him to take possession of the piano or collect the note. The money was not therefore made payable absolutely and at all events.

By the contract a way was left open for an eventual option on the part of the payee to hold the piano and refuse the money. In case of failure to make payment by the day, whether voluntarily or otherwise, the agreement becomes one entitling the payee to demand the piano instead of the money, and this takes place at the moment the right of action arrives. If transferred after maturity no one can ascertain from the face of the paper whether it is or is not an undertaking for money. It seems to me to be wanting in that certainty which the law merchant deems necessary to give it currency according to commercial usage. If correct in this it follows that the want of an indorsement was not a valid objection and that the papers were assignable and suable as choses in action.

It appeared that they were received by Rouse as his commission for selling the piano and that Bannister promised to pay them to him. But that subsequently and whilst they...