Bullock v. Taylor

• Decision Date: 21 June 1878
• Court: Michigan Supreme Court
• Parties: Ransom D. Bullock v. William Taylor et al

39 Mich. 137

Ransom D. Bullock v. William Taylor et al

Supreme Court of Michigan

June 21, 1878

Submitted June 11, 1878

Error to Clinton.

Assumpsit. Plaintiff brings error.

Judgment reversed, with costs, and a new trial ordered.

John D Conely for plaintiff in error. A provision for current exchange in a promissory note is not material, Miller v Finley, 26 Mich. 249; Hill v. Todd, 29 Ill 101; and a provision for an attorney fee does not affect a surety, and the amount is not recoverable until after suit upon the note, Sperry v. Horr, 32 Ia. 186; Smith v. Kendall, 9 Mich. 241; Johnson v. Frisbie, 15 Mich. 286; Easter v. Boyd, 79 Ill. 325; 8 Chic. Leg. News, 457; Dowty v. Holtz, 5 Cent. L. J., 369; Nickerson v. Sheldon, 33 Ill. 372; Nickerson v. Babcock, 29 Ill. 497; Dietrich v. Bayhi, 23 La. Ann., 767; Hodges v. Shuler, 22 N. Y., 114; Osborn v. Hawley, 19 Ohio 130; it is void because as a measure of damages it disregards any theory of compensation, Trustees v. Walrath, 27 Mich. 232; Jaquith v. Hudson, 5 Mich. 123; Davis v. Freeman, 10 Mich. 188; Daily v. Litchfield, id. 29; Richardson v. Woehler, 26 Mich. 90; State v. Taylor, 10 Ohio 378; Shelton v. Gill, 11 Ohio 417; Martin v. Trustees, 13 Ohio 258; Woods v. North, 16 Am. Law Reg., 667; the attorney fee clause is no part of the note, Musser v. Crum, 6 Cent. L. J., 397; Stoneman v. Pyle, 35 Ind. 103; Gaar v. Louisrille, 11 Bush 180; Seaton v. Scorill, 18 Kan. 433.

Spaulding & Cranson for defendants in error.

OPINION

Cooley, J.

The action in this case is brought to recover from William Taylor and Aaron B. Taylor as principals, and Joseph K. Taylor as surety, the amount of several promissory notes given by the principals, and for the payment of which the surety is supposed to have bound himself by a bond executed before the notes were given.

The notes were given in pursuance of a certain agreement under which William and Aaron B. Taylor became agents for the plaintiff in the sale of musical instruments. They also agreed to buy certain instruments, and "to execute and deliver to said Bullock their equal promissory notes, executed by them and payable to his order for the full amount of the aggregate prices of said instruments, * * and that said notes shall be due and payable at Second National Bank of East Saginaw, Michigan, in three equal installments of six, nine, and twelve months from the date of each delivery of said instruments, with interest thereon at the rate of ten percent. per annum, from the date of each of said notes." The bond signed by Joseph K. Taylor was conditioned for the performance by his principals of the stipulations of this agreement.

The question in the case arises on the notes which were afterwards given. The following is a copy of one of them:

"$ 70.83. Mt. Pleasant April 12, 1875.

Nine months after date we promise to pay to R. D. Bullock or order the sum of seventy 83-100 dollars value received, with ten per cent. interest, with current exchange or express charges. If this note is not paid at maturity it is to draw ten per cent. from date, and the undersigned agree to pay fifteen dollars attorney's fees, over and above all taxable costs, should any proceedings be instituted to collect this note, payable at Second National Bank, East Saginaw.

Wm. Taylor & Co."

The surety insists that such notes are not within the terms of his undertaking; first, because they contain a promise to pay exchange or express charges in addition to the sum owing; second, because they provide for the payment of an attorney's fee, to which he has never consented; and third, because, being for the payment of uncertain sums, they are not promissory notes at all.

We quite agree with counsel for the plaintiff that the provision for the payment of exchange or express charges is merely nugatory. By the agreement as well as by the terms of the notes, they were made payable at East Saginaw, and it therefore became the duty of the promisors to be at any expense necessary in the transmission of the money to that place. Whether they sent by draft or by express the expense would equally fall upon them, and an express promise to pay it could add nothing to their liability. The provision on the subject may have been inserted in the notes for a more perfect understanding of the agreement, but the surety could not complain of it, because it could not in any manner add to his liability, or vary his undertaking.

The agreement embodied in some of the notes for the payment by the makers, of an attorney's fee in case any proceedings are instituted for collection, presents a somewhat different question. If the agreement is valid and constitutes a part of the obligation of the makers upon which a recovery may be had in a suit for the amount owing on the note, then it will be conceded the notes which contain it are not within the terms of the...