Hillman v. Schwenk
| Decision Date | 26 January 1888 |
| Court | Michigan Supreme Court |
| Parties | HILLMAN v. SCHWENK. |
Error to circuit court, Berrien county.
Assumpsit by Charles Hillman against John C. Schwenk on a promissory note. Verdict and judgment for plaintiff, and defendant brings error.
This suit is an action of assumpsit upon a promissory note made November 4, 1882, by John C. Schwenk and Barbara Schwenk, his wife, to John Weigers, for $200, payable in two years from date, with interest at 6 per cent. The interest is indorsed paid, the last indorsement being in 1885. The note was drawn to the payee or order, and appears to have been indorsed by him. The declaration was upon the common counts. Plea, general issue, with notice that defendants would show upon the trial, Mrs. Schwenk signed the note as surety for her husband, and never received any consideration therefor and that it did not relate to her separate property, and further, gave notice that they would show, on the trial, that the note was never indorsed by John Weigers to the plaintiff, nor was the note ever transferred to him. The defendant's notice was supported by his affidavit. The plaintiff yielded to the facts claimed in behalf of the wife, and, on motion, discontinued as to her, amended the declaration accordingly, and proceeded to the trial before a jury, and obtained a verdict for the amount of the note, upon which judgment was rendered. Upon the trial, the defendant sought to show that the payee's indorsement of the note was a forgery. The jury, however, found otherwise. At the time of the trial, John Weigers, the payee named in the note, was dead. By his will, he had left a part of his estate to one Carl Wolff, who urged defense to be made to the note in question, and gave a bond to the defendant indemnifying him against all costs by reason of his defending the suit, and said Wolf took an active part in making the defense. The defendant's counsel objected to the testimony of the plaintiff relating to the purchase of the note from Weigers, because of the facts were equally within the knowledge of the latter, and that the defense was being made in the interest of Wolf.
The defendant claimed that he was protected against this statute by section 7545, How. St., as amended by act No. 139, Laws 1885. We do not think the statute invoked applies to a case like the present, and that this objection was properly overruled.
The only issue of fact in the case was whether or not the note in suit was the property of the plaintiff, or the property of Weigers when he died. The plaintiff's testimony shows that John Weigers died on the twelfth of April, 1886, and he claims that he purchased the note of Mr. Weigers in January previous. The plaintiff gave testimony of his purchase of the note, and of the circumstances under which he obtained Mr Weiger's indorsement of the same, which he claimed to have secured some little time after he made the purchase. In this part of his testimony the witness was asked: "Who told you, and how came it that you ought to have Mr. Weiger's name on the note?" This was objected to as "immaterial and hearsay." The objection was well taken, and the evidence should have been excluded. On the cross-examination of this witness, defendant's counsel sought to prove that Mr. Weigers, at the time of his death, had money to loan. This testimony was properly excluded by the court. Also the fact that the witness put in a claim before the commissioners against Weigers' estate was irrelevant, and rightly excluded. The witness was asked the following question by defendant's counsel upon his cross-examination: "Did you have his pocket-book after his death?" The plaintiff had been permitted to testify that Mr. Weigers kept the note in question in his pocket-book, and it was the claim of the defendant that Weigers had the same therein until after his death, and that the plaintiff took the same...
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