Burson v. Huntington

• Decision Date: 11 October 1870
• Citation: 21 Mich. 415
• Court: Michigan Supreme Court
• Parties: John W. Burson v. Walter S. Huntington

21 Mich. 415

John W. Burson v. Walter S. Huntington

Supreme Court of Michigan

October 11, 1870

Heard July 6, 1870 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Kalamazoo circuit.

This cause was brought into the circuit court for the county of Kalamazoo by appeal from the judgment of a justice of the peace, in an action in which Walter S. Huntington was plaintiff, and John W. Burson defendant. The justice's transcript states tat the plaintiff declared verbally on the common counts in assumpsit and upon a promissory note, which was filed at the time of declaring, and of which the following is a copy, viz.:

"Schoolcraft, Mich., April 12th, 1866.

"Ninety days from date, for value received, I promise to pay A. N. Goldwood, or order, one hundred and twelve dollars and fifty cents, with interest. John W. Burson." Indorsed on the back, "A. N. Goldwood."

The defendant filed an affidavit denying the delivery of the note, and also a plea and notice in writing.

The defendant, in the affidavit filed with his plea and notice, deposes "that the written instrument, declared on in this cause by said plaintiff, was never delivered by this defendant, to the said A. N. Goldwood, mentioned in said written instrument, nor to any other person for the said A. N. Goldwood, or any other person, and that this defendant never authorized any other person to deliver the written instrument for him, this defendant, to the said A. N. Goldwood, or to any other person; and defendant further says that this deponent never placed any United States internal revenue stamp upon said written instrument, and never authorized any other person to do so for him, or to cancel the same; that said written instrument was taken from the house of this defendant, in this defendant's absence from the same, by the said A. N. Goldwood, without the knowledge or consent of the deponent at the time."

On the trial before the justice, the jury found a verdict for the defendant, and the plaintiff appealed.

On the trial in the circuit court, the defendant objected to the jurisdiction of the court, that: 1st. It does not appear that there was any legal service of the summons upon the defendant in the case. 2d. It does not appear that the summons was ever delivered to any officer, or in the hands of any person authorized to serve the same. It does not appear that the parties, or either of them, ever appeared before the justice in pursuance of the requirement of said summons; which objections were overruled by the court, and the defendant excepted. The signature of A. N. Goldwood on the back of the note having been proved, the plaintiff then offered to read the note in evidence to the jury. The defendant objected, on the ground that the execution of the note had been denied by affidavit of defendant, filed with the court under the statute, and the signature had not been proved; which objection was overruled by the court, and the defendant excepted. Counsel for defendant again objected to the reading of the note in evidence, upon the following grounds: There is no proof of the signature of defendant to the note; the execution of the note is denied under oath; the note is not stamped, and the stamp canceled, as required by the laws of the United States; which objections were overruled by the court, and the defendant excepted. The note having been read in evidence, the plaintiff rested.

On the part of the defense it was shown that Ellen Burson had been sworn as a witness before the justice, and that she had since died.

Zachariah Fletcher was then called, and testified that he knew Ellen Burson in her life time, and heard her give all her testimony before Justice Allen. Being asked to state what she testified to on that trial, he answered: I cannot state her precise words; can give the substance of what she said. The counsel for plaintiff objected to the witness stating her testimony any further, upon the following grounds: 1st. It does not appear that the witness can repeat her testimony. 2d. It calls for conclusions as to the effect of her testimony. The objection was overruled by the court, and the witness testified: "That Goldwood came to the house of defendant and told defendant he had come to finish up that matter. They sat down, and Goldwood wrote this note. Defendant signed it. Goldwood said he wanted security or a signer. Defendant said he would go out and see his uncle. His uncle was at the barn at the time. Defendant laid the note on the table, and told plaintiff not to touch it until he came back. Defendant went out of the house to the barn, and before he returned, Goldwood picked up the note and started outdoors with it. She told Goldwood to let the note be on the table until defendant came back. Goldwood said he was going to take the note, or proposed to have it, or something to that effect, and went off with it. He started towards Kalamazoo. She said there was no stamp on the note at the time Goldwood took it away."

After the testimony of the parties was closed, the counsel for the plaintiff moved to strike out all the testimony of witness Zachariah Fletcher, which purports to be the testimony of Ellen Burson, given on the trial of this cause before the magistrate, for the reasons: 1st. The testimony is simply the conclusion of the witness and not her statement. 2d. The plaintiff is shown to be a bona fide holder of the note before maturity, and her testimony is therefore irrelevant; to which the counsel for defendant objected; but the objection was overruled by the court and the said testimony stricken out; the counsel for defendant excepted to the ruling.

The counsel for the defendant then asked the court to charge the jury:

1st. That if they find that A. N. Goldwood, the payee named in the note, took this note after it was drawn and signed by defendant, without the knowledge, and against the will and consent of the defendant, and before the defendant had delivered the note to any person, the note thus obtained would be void in the hands of said Goldwood.

2d. That such note would be void in the hands of any subsequent holder, deriving possession of the same from said Goldwood, whether for value or not.

3d. If the jury should find that the plaintiff had notice of the means and manner used by A. N. Goldwood, as above stated, in getting possession of the note at the time he indorsed and delivered it to the plaintiff, the plaintiff could not be considered an innocent holder of the note.

4th. That whether the plaintiff in this cause had such notice, or not, is a question of fact to be found by the jury from all the testimony in the case. That the fact of the plaintiff having such notice need not be proved by positive testimony, but may be proved by circumstances.

5th. That this note in suit, if drawn and signed by the defendant, and if not afterwards delivered by him or by his authority to some other person, had no legal existence, and is therefore void.

6th. That if the jury shall find that the note in question upon its face showed at the time that the plaintiff received it of A. N. Goldwood, or during the time Goldwood had the note plaintiff saw the same, and it was not properly executed, and was invalid under the laws of the United States for the want of a proper stamp, then the plaintiff cannot be considered as a bona fide holder, though he may have given value for the note.

7th. That if the note bears upon its face an illegal stamping by the payee therein named, and did so bear such illegal stamping at the time it was indorsed to, and obtained by the plaintiff, this fact alone should have been sufficient to put the plaintiff on inquiry as to its validity when he obtained it, and if he failed to do this he cannot be deemed an innocent purchaser for value.

And thereupon the court charged the jury as follows:

The present is an action of assumpsit, brought to recover the principal and interest moneys claimed to be due upon a negotiable promissory note. The plaintiff claims to be the holder of said note by purchase. The action is brought in the form prescribed by statute. The declaration consists of the common counts, with a copy of the note appended. The defendant having failed to deny the execution of the note on oath or by affidavit duly filed, it becomes unnecessary for the plaintiff to prove such execution on the trial of the case. By offering the note in evidence, then proving it to have been indorsed and delivered to him, the plaintiff in such case makes out a prima facie case for its recovery.

The real questions raised upon this trial are those started in the defense set up, and had reference almost solely to the doctrine of our commercial law and the rights of the parties interested in negotiable or commercial paper. As between first parties to such paper, as maker, payee, the right of defense is generally as ample in range, as the facts which would invalidate the contract or claim; as, for instance, illegality, fraud, want or failure of consideration or any unwarrantable means for obtaining it. A like rule prevails in an action between the maker and a subsequent indorser, or holder, coming into possession or ownership after the note has matured, and become due and payable by its terms.

The same rule governs also as between the maker and holder by purchase before maturity and for value, but with notice of existing infirmities in the paper, or its surroundings, which would invalidate the same, as, for instance, that the note had been given upon the sale and purchase of intoxicating liquor in this state.

But when the action is between the maker and bona fide holder for...