Johnston Harvester Co. v. Miller

• Decision Date: 01 November 1888
• Citation: 72 Mich. 265,40 N.W. 429
• Court: Michigan Supreme Court
• Parties: JOHNSTON HARVESTER CO. v. MILLER.

40 N.W. 429

72 Mich. 265

JOHNSTON HARVESTER CO. v. MILLER.

Supreme Court of Michigan

November 1, 1888

Appeal from circuit court, Wayne county; HENRY N. BREVOORT, Judge.

Assumpsit on a promissory note, brought by the Johnston Harvester Company against Joseph Miller. Judgment for defendant, and plaintiff appeals.

MORSE J.

The plaintiff sues the defendant in assumpsit upon the following promissory note:

"$100.

INKSTER, MICH., Nov. 28th, 1885.

"On or before the first day of January, 1887, for value received I, the undersigned, of the township of Taylor, county of Wayne, state of Michigan, promise to pay to the order of the Johnston Harvester Company, one hundred dollars, ($100,) payable at express office, Dearborn, Mich., with interest at seven per cent. per annum from Nov. 1st, 1885, until due, and ten per cent. after due.

JOSEPH MILLER.

"P O. Address: Taylor, County Wayne, State Mich." This note was indorsed as follows:

"For value received I hereby guarantee the prompt payment of the within note, and waive protest, demand, and notice of non-payment thereof.

"GEORGE REYNOLDS.

"Post-Office: Inkster, Mich. Date Dec. 17th, 1885."

The defendant pleaded the general issue, and gave notice that the alleged note was without value and consideration, and that it was a forgery, and never executed by him. He also filed an affidavit, denying under oath its execution. Verdict and judgment in the court below for defendant.

Reynolds was the agent of plaintiff in selling machines, and acted as such agent under a written contract. One Samuel Clay, a farmer, was owing him $100. Clay had delivered oats under the usual Bohemian scheme to defendant, and held his note for $100. Clay said to Reynolds that if they could get defendant to take up his note, and give a new one to Reynolds, it would clear them "both." Reynolds and Clay were the only witnesses or plaintiff. They testify that the note from defendant to Clay was written on an ordinary half sheet of white note paper, and Reynolds did not wish to take it, because his company (the plaintiff) would not receive a note in payment of Reynolds' indebtedness to them, unless it was written upon one of its blanks. They went together to Miller's house, and proposed the arrangement to him. He at once accepted the proposition, and executed and delivered the note in suit to Reynolds. The Clay note was then delivered to defendant, and burned. That Reynolds knew nothing of the consideration for the old note until after the new note was made and delivered to Reynolds. Then the defendant said that if the Bohemian Oats Company did what was right with him, he holding the usual bond, he would pay the new note, but if they did not he would not pay it. Reynolds also testified that he never acquainted the plaintiff with this transaction, or the consideration of the note, but indorsed it a few days after its execution, and forwarded it to plaintiff in payment of a balance due from him to the company. Miller testified in his own behalf that in the fall of 1885, one Riggs, an agent for a Bohemian Oats Company, contracted with him for the sale of 10 bushels of Bohemian oats, and gave him a bond, or contract, by which the said company agreed to purchase 20 bushels of the same kind of oats, to be raised from the seed so purchased by him. In pursuance of this contract, he gave the promissory note to Clay, who delivered the oats contracted for. That the company failed to fulfill the bond or contract on their part. He further testified that Reynolds and Clay came to his house on the 28th day of November, 1885, and requested him to make a new note for the $100, payable to the order of Reynolds. That he did so, conditioned, however, with an oral understanding that unless the Bohemian Oats Company purchased the 20 bushels from him, as agreed in the bond, he would not pay the new note. But he testified further that the note in suit was not the note he then executed, and that he never made or signed any such note at that or any other time. That the note he made and delivered to Reynolds was not written upon a printed blank, but was upon an ordinary sheet of white letter-paper, and did not provide for the payment of any more than 7 per cent. interest before or after due.

The plaintiff, in opening this case, proved the execution of the note by the testimony of Reynolds. The court, against the objection of plaintiff's counsel, permitted a cross-examination of the witness, not only with reference to the execution of the note, but upon other matters pertinent to the claim of the defense. He was asked if he had not made certain statements to different persons to the effect that he knew the Clay note had been given for Bohemian oats when he received it, and before the exchange of notes was made. Then witnesses were permitted to testify in impeachment of his answers to such questions. It is claimed by asking these questions the defendant made Reynolds his own witness, and was bound by his answers. We think there was no error committed in this respect. Reynolds testified in chief that he was present with Clay at the house of Miller, and saw defendant sign the note, and that he was the agent of the plaintiff. The defendant was entitled, upon cross-examination, to everything that took place at the house on that occasion; and when, upon such cross-examination, the witness stated that he knew nothing about the consideration of the Clay note, or what it was given for, as he did testify, then the defendant was entitled to ask him if he had not made different statements out of court of what occurred there, and, if he denied making any such statements, to prove it when he was making his defense. It is also assigned as error that the counsel for defendant was permitted to interrogate the witness Reynolds, and show by his own testimony that he had before this sold a grinder, or pulverizer, to the defendant, who paid him the price in cash,-$35; and that afterwards he turned in to a company at Ann Arbor a $35 note, purporting to be signed by the defendant, which was not given for the grinder; and that the grinder was the only implement he ever sold defendant, the price of which was $35. We think this evidence was admissible as affecting the credibility of the witness, who did not claim his privilege of not answering it, because it might tend to criminate him. It was also competent for another reason. It had some tendency to show that the witness obtained the note in this case fraudulently. See Stubly v. Beachboard, 36 N.W. 202, 203.

Two experts in handwriting, both of whom had never seen defendant write, were examined, and, from a comparison between the signature to the note in suit...