Hyde v. Tenwinkel

• Citation: 26 Mich. 93
• Court: Supreme Court of Michigan
• Decision Date: 29 October 1872
• Parties: Valentine M. Hyde and another v. Charles Tenwinkel

26 Mich. 93

Valentine M. Hyde and another v. Charles Tenwinkel

Supreme Court of Michigan

October 29, 1872

Heard October 25, 1872

Error to Wayne circuit.

Judgment affirmed, with costs.

H. M & W. E. Cheever, for plaintiffs in error.

John W McGrath and C. I. Walker, for defendant in error, cited: 2 Parsons on N. and B., 508 to 513 and notes; Dow v Tuttle, 4 Mass. 414; Foy v. Blackstone, 31 Ill. 538; Swank v. Nichols, 24 Ind. 199; Jones v. Phelps, 5 Mich. 218; Adair v. Adair, 5 Ibid, 204.

OPINION

Graves; J.

This was a suit by defendant in error, upon a promissory note dated October 15, 1870, made by Valentine M. Hyde, and indorsed by Harriet Z. Hyde, payable to Tenwinkel & McCune, and indorsed to defendant in error by the payees. The plaintiffs in error gave notice with their plea of the general issue, that they should show that the note was given conditionally, to be paid, if at all, out of certain insurance money, if that should be paid without suit or litigation, and that it was not paid without litigation, Harriet Z. Hyde being compelled to sue to recover it. They also gave notice that they should show that no consideration passed. The execution of the note was not denied.

On the trial the note was offered in evidence without any proof of the indorsement to Tenwinkel, and no objection being made, it was received and read in evidence.

The plaintiff below thereupon rested, and counsel for defendants below then proposed to give in evidence certain circumstances connected with the giving of the note, as indicated by the notice of defense. That offer is stated in the record as follows: "We offer to prove that the consideration for this note was the delivery of two endowment policies of the Continental Life Insurance Company, and also the payment of a life policy of Dr. Charles A. Hyde (who was then deceased), of five thousand dollars, with interest in full, without delay, without litigation or expense to the defendants, but that defendants were put to the expense of litigation for a year, and then received the five thousand dollars without any interest, and without the costs of litigation; that the endowment policies, having been received by defendants, were subsequently returned to the plaintiff, and were in his hands when this suit was begun, and that he now holds them, and has held them ever since; that this note was delivered to plaintiff for the purposes and intents above set forth, and not as an absolute and unconditional promissory note."

The court rejected the offer, and no further evidence being proposed, the counsel for the plaintiffs in error desired an instruction, that no recovery could be had under the evidence; but this was refused, and the jury returned a verdict for Tenwinkel. These rulings present the only questions raised by the record.

This offer of proof by plaintiffs in error was properly rejected. The obvious purpose, as indicated by the notice and as urged by counsel, was to show a verbal contemporaneous agreement or understanding, to reduce the note from an absolute and specific undertaking according to its terms and legal...