Brewer v. Boynton

• Decision Date: 11 July 1888
• Citation: 39 N.W. 49,71 Mich. 254
• Court: Michigan Supreme Court
• Parties: BREWER v. BOYNTON ET AL.

39 N.W. 49

71 Mich. 254

BREWER v. BOYNTON ET AL.

Supreme Court of Michigan

July 11, 1888

Error to superior court of Grand Rapids; EDWIN A. BURLINGAME Judge.

Action brought by Aaron Brewer against Jeremiah W. Boynton, Hiram Knapp, and Harry H. Ives. Verdict and judgment for plaintiff and defendants bring error.

CAMPBELL J.

This is an action on an old judgment rendered in the superior court of Grand Rapids in favor of James H. Brown upon a promissory note made by Boynton to the order of Erastus U. Knapp, and indorsed by Erastus U. Knapp and defendants Harry H. Ives and Hiram Knapp in blank, in the order named. This judgment was finally rendered October 13, 1877. Hiram Knapp was not served within the city of Grand Rapids, but was served in the county of Kent. Some question was raised upon the jurisdiction to render judgment against Hiram Knapp, which, in the view we take of the case, is not very important. This judgment was assigned to plaintiff. Soon after it was rendered, Boynton was discharged in bankruptcy. Erastus U. Knapp was treated by plaintiff as a joint promisor with Boynton, Ives, and Hiram Knapp, and was released on payment of one-fourth of the judgment.

The present action was begun by summons in assumpsit, and was afterwards changed by declaration in debt. It is claimed that as an action of as sumpsit it was barred in six years from the date of the original judgment and that it was not competent, by filing a declaration in debt, to cut off the right of pleading, as in assumpsit, anything which would bar such an action. But it appears that no such point was raised in the pleadings. The notice of the defense of the statute of limitations was that the cause of action did not accrue within 10 years; and, as the suit was begun within 10 years, it was properly begun. The variance between the writ and declaration is of no consequence for any other purpose.

The case was presented below, and ruled by the court, on the ground that all the defendants were joint promisors with Erastus U. Knapp, and upon this ground a verdict was ordered to be rendered against Ives and Hiram Knapp. But this is an error. The notes was made payable to the order of Erastus U. Knapp alone. This being so, Hiram Knapp and Ives were not joint indorsers with Erastus, but were subsequent indorsers. Their liability is governed by the form of the contract which they made, and the holder of the note could not lawfully charge them in any other way. Stewart v. Bank, 40 Mich. 348; Smith v. Long, Id. 555; Greusel v. Hubbard, 51 Mich. 95, 16 N.W. 248. Erastus Knapp was liable to his indorsers if they should pay the note, but they could under no circumstances be liable at law to him. His discharge without their consent discharges them, as he was not a joint promisor with them. The court erred in holding that the jury were bound to give a verdict against them.

Boynton being the primary debtor, was not released by releasing Erastus Knapp. He pleaded and showed a discharge in bankruptcy. Reliance was had on a new promise, and he did not plead the statute of limitations. The alleged proof of a new promise was by two witnesses. The plaintiff was one, and Harry H. Ives the other. The discharge was granted April 30, 1878. Plaintiff swore that since April 8,...