Choate v. Stevens

• Citation: 74 N.W. 289,116 Mich. 28
• Court: Supreme Court of Michigan
• Decision Date: 01 March 1898
• Parties: CHOATE v. STEVENS ET AL.

74 N.W. 289

116 Mich. 28

CHOATE v. STEVENS ET AL.

Supreme Court of Michigan

March 1, 1898

Error to circuit court, Wayne county; George S. Hosmer, Judge.

Action by Rufus M. Choate against Frederick D. Stevens and another. Judgment for plaintiff, and defendants bring error. Affirmed.

Corliss Andrus & Leete, for appellants.

Bowen Douglas & Whiting, for appellee.

HOOKER J.

The defendants have appealed from a judgment upon three written instruments, substantially alike, of one of which the following is a copy: "$115.00. Detroit, July 25, 1893. For value received, March 16, 1895, after date, I promise to pay, to the order of Low's Art Tile Soda-Fountain Co. one hundred and fifteen dollars, with interest 6 per cent. The consideration of this and other notes is the soda-draught apparatus described in contract of same date as this and other notes, which soda-draught apparatus the undersigned has received of said Low's Art Tile Soda-Fountain Co. Nevertheless it is understood and agreed by and between the undersigned and the said Low's Art Tile Soda-Fountain Co. that the title to the above-mentioned property does not pass to the undersigned, and that, until all said notes are paid the title to the aforesaid shall remain in the said Low's Art Tile Soda-Fountain Co., who shall have the right, in case of nonpayment at maturity of either of said notes, without process of law, to enter and retain immediate possession of said property, wherever it may be, and remove the same. Payable at the Preston National Bank." Each bears, as an indorsement, the name of the payee. The defendants say that they were improperly admitted in evidence, for the reason that they are not promissory notes, and, if the indorsements are to be treated as an assignment of the chose in action, it should have been alleged in the declaration; and, further, that there was no evidence that the plaintiff was the owner of the notes sued upon. Both briefs indicate that the question considered most important, if not decisive of the case, is that of the negotiability of the notes. The instruments-to the end of the fourth line-are in form promissory notes. If there were nothing more, they would be as perfect and complete promissory notes as it is possible to make. The writing proceeds to state the consideration for said notes, which, though not essential, was harmless. Wright v. Irwin, 33 Mich. 32. This is followed by the statement that the parties agree that the title to the property for which the notes were given shall remain in the payee, who, in case of nonpayment at maturity of either of said notes, "may enter and retain immediate possession of the property, without process of law, wherever it may be, and remove the same." If it can be said that this writing shows a...