Gross v. Von Dolcke, 70.

• Decision Date: 03 December 1945
• Docket Number: No. 70.,70.
• Citation: 20 N.W.2d 838,313 Mich. 132
• Parties: GROSS v. VON DOLCKE et al.
• Court: Michigan Supreme Court

313 Mich. 132

20 N.W.2d 838

GROSS

v.VON DOLCKE et al.

No. 70.

Supreme Court of Michigan.

Dec. 3, 1945.

Appeal from Circuit Court, Wayne County; William B. Brown, judge.

Action by Nathan M. Gross against Arthur L. Von Dolcke and Doris Von Dolcke, jointly and severally on an instrument designated as a promissory note. From a judgment of no cause of action, plaintiff appeals.

Reversed and new trial granted.

Before the Entire Bench.

David I. Hubar, of Detroit, for appellant.

Robert C. Murphy, of Detroit, for appellees.

NORTH, Justice.

This is an appeal from a judgment of no cause of action. The plaintiff instituted suit on the following instrument designated as a ‘promissory note’ in the pleadings:

‘April 8th, 1935.

‘For value received and for services rendered, We hereby agree to pay to Nathan M. Gross or order the sum of Five thousand dollars ($5,000.00) on or before October 1st, 1936, with interest at Five per

‘(Signed) Arthur L. Von Dolcke

‘(Signed) Arthur L. Von Dolcke

‘(Signed) Doris Von Dolcke

‘This note given to me in consideration of the services I have rendered, is to be paid in full if possible by that time, and if this amount is (not) available, a partial payment will be acceptable of any amount available and the note extended from time to time until it can be paid in full by either Doris or Arthur Von Dolcke, individually or collectively.

‘(Signed) N. M. Gross'

Upon trial without a jury, plaintiff introduced the above instrument as prima facie evidence of his case, computed interest showing $6,270 was the amount due and for which he sought judgment. He then rested his case. Defendant thereupon made a motion to dismiss on the ground of ambiguity of due date and failure of consideration. After considerable discussion between counsel and court, a judgment of no cause of action was given for the reason that a ‘definite, positive, unqualified due date is essential in a promissory note’ and is lacking in the present instrument. 2 Comp.Laws 1929, § 9253 (Stat.ann. § 19.46). We are of the opinion the trial court erred in entering a judgment of no cause of action.

Plaintiff's declaration was on the common counts with the above quoted instrument attached thereto. This action is between the original parties to the instrument. As between original parties it is immaterial whether the instrument is negotiable or nonnegotiable. Hence in the instant case the usual rules of negotiable instruments are inapplicable.

‘After all, a promissory note is a simple contract until is takes on peculiar features through negotiation by the payee or as may be expressly declared by statute. As between the original parties, it is subject to the same defenses as if it were non-negotiable, [2] Comp.Laws 1929, § 9307.’ Annis v. Pfeiffer, 278 Mich. 692, 271 N.W. 568, 569.

See also Parker v. Parker, 282 Mich. 158, 275 N.W. 803.

Defendants' obligation on the instrument in suit is no different than it would have been if the instrument had been made payable ‘after October 1st, 1936.’ Such a provision at least would make payment due within a reasonable time after the specified date. Or if this instrument is construed, in view of all its terms, to be one in which no due date is provided, it was then payable on demand. ‘An instrument is payable on demand: * * * Second, In which no time for payment is expressed.’ 2 Comp.Laws 1929, § 9256 (Stat.Ann. § 19.49).

The uncertainty of the due date, injected by the appended provision, destroyed negotiability, but it did not destroy the contract as between the parties. Smith v. Van Blarcom, 45 Mich. 371, 8 N.W. 90, is applicable to the present case. In that case a note for $300 had attached to it a rider permitting the payee to extend the time of payment indefinitely if he saw fit. Mr. Justice Campbell, in the opinion, said: ‘The court below held that this destroyed the negotiability, because it rendered the time of payment uncertain.

‘Plaintiffs in error claim that this clause is void, and that the note...