Cate v. Patterson

• Decision Date: 09 July 1872
• Citation: 25 Mich. 191
• Court: Michigan Supreme Court
• Parties: Rufus Cate v. Thomas L. Patterson

25 Mich. 191

Rufus Cate v. Thomas L. Patterson

Supreme Court of Michigan

July 9, 1872

Heard May 14, 1872

Error to Oakland Circuit.

Judgment affirmed, with costs.

H. J Beakes, for plaintiff in error, cited: Sibree v Tripp, 15 M. & W., 22; Horn v. Redfearm, 4 Bing. N. C., 433; Patterson v. Poindexter, 6 Watts and Serg., 227; Chamley v. Dulle, 8 Watts and Serg 353.

Patterson & Patterson and F. A. Baker, for defendant in error, cited: Poorman v. Mills, 35 Cal. 118; Miller v. Austen, 13 How. (U.S.), 218; Bank v. Farnsworth, 18 Ill. 563; Laughlin v. Marshall, 19 Ill. 390; Kilgore v. Bulkley, 14 Conn. 362; Carey v. McDougad, 7 Geo. 84; Johnson v. Barney, 1 Iowa 531; Bean v. Briggs, 1 Clark (Iowa), 488; Smillie v. Stevens, 39 Vt. 315; Howe v. Harkness, 11 Ohio (N. S.), 449; Hunt v. Divine, 37 Ill. 137.

Christiancy, Ch. J. Campbell and Cooley, J.J., concurred. Graves, J., did not sit in this case.

OPINION

Christiancy, Ch. J.

Defendant in error brought his action in the court below against plaintiff in error as indorser of the certificate of deposit, of which the following is a copy:

"No. 6416. D. L. Latourette, successor of the First National Bank of Fenton, Michigan.

Fenton, July 18, 1871.

"H. C. Riggs, Esq., has deposited in this bank five hundred and fifty dollars, payable to the order of Rufus Cate, with interest if left three months, on the return of this certificate.

"D. L. Latourette, Cashier."

This certificate was indorsed by Cate, to whose order it was payable. The declaration was upon the common counts, with a copy of the certificate and indorsement attached, the plaintiff treating it as a promissory note. Its introduction in evidence was objected to, on the ground that it was not a promissory note within the meaning of Comp. L. of 1857, § 4161, which allows this mode of declaring upon promissory notes and bills of exchange. The circuit judge held it to be, in legal effect, a promissory note, and therefore admitted it in evidence; and this presents the main question in the case.

We think this ruling of the circuit judge was right, and that the instrument was, in legal effect, a promissory note. It contains all the elements necessary to constitute a promissory note; the statement of the deposit being, in legal effect, no more then a statement of the consideration, and the word "payable" in the context in which it stands, must be treated as an express promise to pay, as this is the only possible meaning which can be attributed to it. It was payable on demand, no other time being fixed, and the sum was certain, within the meaning of that term, as generally used in the definition of a promissory note; the amount of principal was certain, at all events, and though, if left for three months, interest was to be added from its date, yet there was no time, whether before or after the expiration of the three months, when, if payment had been demanded, the amount due would not have been absolutely certain--if before the three months, the stated principal only, if after that time, the interest to be added to that principal.

We are aware there are a few decisions, and these are cited by the counsel for plaintiff in error, which might seem to be opposed to the conclusion we have adopted; but the great weight of authority sustains our conclusion, as will sufficiently appear by the cases cited on the part of defendant in error. As we are entirely satisfied the latter are more in accordance with just principle and founded on the better reason, we shall not here enter upon an analysis of the authorities.

It is further assigned for error, that the court refused to charge that, if the jury should find that the certificate was passed to the plaintiff on the second day...