Chapman v. Remington

• Decision Date: 09 May 1890
• Citation: 80 Mich. 552,46 N.W. 34
• Court: Michigan Supreme Court
• Parties: CHAPMAN v. REMINGTON et al.

46 N.W. 34

80 Mich. 552

CHAPMAN v. REMINGTON et al.

Supreme Court of Michigan

May 9, 1890

Error to circuit court, Van Buren county; GEORGE M. BUCK, Judge.

Suit by George Chapman against George H. Remington, maker, and Samuel P. Cross and W. W. Wenbon, indorsers, of a promissory note. Verdict and judgment for plaintiff, and defendant Remington appeals.

Mills, Osborn & Goss, for appellant.

Boudeman & Adams, for appellee.

LONG J.

In the year 1888 the drain commissioner laid out and constructed in Geneva township, Van Buren county, a public drain called the "Three Mile Creek Drain." The costs of construction were laid, two-thirds upon the parties benefited, and one-third upon the township of Geneva. The costs of such construction amounted to something over $500. Among others who were assessed for such drain was one James Stewart, whose assessment amounted to $183. For the purpose of paying the contractors and others for the work on the drain, the drain commissioner issued certain drain orders payable out of that fund, on February 1, 1889. The tax was assessed by the supervisor in his assessment roll for the year 1888, and became due and payable in January, 1889. James Stewart refused to pay his tax, and the township treasurer having the tax-roll in his possession, levied thereunder upon certain of Mr. Stewart's personal property, and advertised and sold it at public vendue. The sale was made on January 28, 1889, and the defendant Remington became the purchaser, and gave to Mr. Wenbon, township treasurer, the defendant impleaded here, his promissory note indorsed by Samuel P. Cross for the amount of his bid, $198.38. It appears that the plaintiff was the book-keeper in the West Michigan Savings Bank of Bangor, and on the 18th day of January, 1889, held and owned about $149 worth of these orders, and the bank also held for collection an order of $38.12, all drawn by the drain commissioner on this fund. On that day the plaintiff wrote to Mr. Wenbon, and asked if he could pay them if he should send them up. These orders were all payable on February 1, 1889. It also appears that Mr Wenbon on January 29, 1889, went to Bangor, and to the bank there, saw the plaintiff, presented the note of Mr. Remington so indorsed by Mr. Cross, and asked the plaintiff if it was good. The plaintiff says: "I looked it over carefully, and said: 'Yes, it is good.' I knew George Remington and Samuel P. Cross, and always supposed them pecuniarily responsible. They did business at the bank, and were my neighbors; one of them, Mr. Remington, living next door to where I reside. I knew James Stewart, and I had heard previous to that he was having some difficulty with reference to his drain taxes, but I had not heard until after I got the note that any of his property had been sold for drain taxes. Mr. Wenbon, after these inquiries, said to me: 'If you can use that note, I will take all the orders you have got against our town."' An arrangement was then made between the plaintiff and Mr. Wenbon by which the plaintiff took the Reminton note, so indorsed by Cross, and Mr. Wenbon then also indorsed it, in exchange for the drain orders so held by plaintiff, as well as the order of $38.12, which was owned by Mr. James D. Ferguson. The plaintiff credited Mr. Ferguson for this amount upon the books of the bank, and charged his account with it.

This action is brought against Remington, Cross, and Wenbon on this note. On the trial in the court below the plaintiff had verdict and judgment. Defendant Remington brings error. The claim made upon the trial in the court below was that the tax-roll held by the township treasurer had no warrant attached, and that all the proceedings for the enforcement of the tax against Stewart were void. It was also claimed that the treasurer of the township, Mr. Wenbon, had no lawful authority to take the note of Mr. Remington on the sale of the property of Mr. Stewart for this tax, and that therefore the note was void in the hands of Mr. Wenbon on the ground of public policy. It is also contended here that, the note being void on the ground of public policy, the plaintiff could not stand in relation to it as a bona fide purchaser. The court below advised the jury that the Stewart tax was void, and the treasurer had no right to proceed to its collection. The court also instructed the jury that the note was void in the hands of Mr. Wenbon, and that he could not have maintained an action thereon to enforce its collection. This instruction was correct under the ruling of this court in Doran v. Phillips, 47 Mich. 228, 10 N.W. 350, and Turnbull v. Township of Alpena, 42 N.W. 116.

The defendant, however, is not complaining of this ruling, but insists that the court should have gone further and...