Conrad Seipp Brewing Co. v. McKittrick

• Decision Date: 21 May 1891
• Citation: 48 N.W. 1086,86 Mich. 191
• Court: Michigan Supreme Court
• Parties: CONRAD SEIPP BREWING CO. v. MCKITTRICK.

48 N.W. 1086

86 Mich. 191

CONRAD SEIPP BREWING CO. v. MCKITTRICK.

Supreme Court of Michigan

May 21, 1891

Error to circuit court, Kent county; MARSDEN C. BURCH, Judge.

Fitzgerald & Barry, for appellant.

Elizabeth Eaglesfield, (E. A Maher, of counsel,) for appellee.

CHAMPLIN C.J.

The plaintiff brought suit against the defendant, declaring upon the common counts in assumpsit, and annexing thereto a copy of the following instrument in writing, and giving notice that the instrument denominated a promissory note would be given in evidence under the money counts, and that it constituted the plaintiff's sole cause of action viz.:

"$720.00. Grand Rapids, Mich.,

April 20th, 1888.

THE CONRAD "Six months after date, for value received, 1 promise to pay to

SEIPP the order of the Conrad Seipp Brewing Co., Chicago, Ill seven

BREWING hundred and twenty 00-100 dollars, at their office, Chicago,

CO. Ill., with interest at 6 per cent. per annum after maturity,

until paid. And to secure the payment of said amount I hereby

authorize irrevocably any attorney of any court of record to

appear for me in such court, in term-time or vacation, at any

time hereafter, and confess a judgment, without process, in

favor of the holder of this note, for such amount as may appear

to be unpaid thereon, together with costs and usual attorney's

fees, and to waive and release all errors which may intervene in

any such proceedings, and consent to immediate execution upon

such judgment, hereby ratifying and confirming all that my said

attorney may do by virtue hereof.

"No. 4,042. E. J. MCKITTRICK."

The plea was the general issue, with notice of recoupment. The case was tried before the court without a jury, and a written findings of fact and law filed, in which it was found that the plaintiff was a corporation, and the defendant on the 20th day of April, 1888, made and executed for a valuable consideration the written instrument, a copy of which is given above; that by the delivery thereof to the plaintiff, which occurred on the 20th day of April aforesaid defendant became liable to pay plaintiff $720, with interest at 6 per cent. after maturity; that plaintiff demanded payment after the money became payable, and defendant refused to pay; and that there was at the time of such finding due and unpaid to plaintiff on such written instrument, $801.60. The judge also found at the request of defendant "that by the statutes of the state of Illinois it is provided that 'any person, for a bona fide debt due, may confess judgment by himself or attorney, duly authorized, in term-time or vacation, without process. Judgments entered in vacation shall have like force and effect, and from the date thereof become liens, in like manner and extent as judgments entered in term,' as appears in the Revised Statutes of the state of Illinois for the year 1881, at page 1107, as appeared in evidence in the case." A bill of exceptions was settled, and is a part of the record in the case, from which it appears that when the instrument in writing signed by defendant was offered in evidence the defendant's attorneys objected to the introduction thereof, on the ground that the paper writing was not a promissory note, and was incompetent, immaterial, and irrelevant to the issue; that, if anything, it is a mere contract, irrelevant to the issue joined; and also because it was not shown that the person who executed the paper writing is the same person as the defendant,-which objections were overruled, and the instrument admitted in evidence. This ruling of the court constitutes the defendant's first assignment of error. Defendant's counsel contend that the instrument, not being a promissory note, is not admissible in evidence under the common counts of the declaration. That the instrument is not a promissory note is...