Jordan v. Newton

• Decision Date: 06 May 1898
• Citation: 75 N.W. 130,116 Mich. 674
• Court: Michigan Supreme Court
• Parties: JORDAN v. NEWTON ET AL.

75 N.W. 130

116 Mich. 674

JORDAN v. NEWTON ET AL.

Supreme Court of Michigan

May 6, 1898

Appeal from circuit court, Berrien county, in chancery; Orville W Coolidge, Judge.

Bill of interpleader by Francis Jordan, for whom was afterwards substituted Orville C. Jordan, against John C. Newton and others, impleaded with Abel W. Wells and others. There was a decree for complainant, and John C. Newton, Daniel H. Newton John W. Welch, and Milton R. Wood appeal. Affirmed.

N. A Hamilton, for complainant.

Edward Bacon (Cahill & Ostrander, of counsel), for appealing defendants.

Lawrence C. Fyfe, for nonappealing defendants.

MOORE J.

The circuit judge filed a written opinion in this case, which so clearly states the questions involved that I quote as much from it as is necessary to an understanding of the case "The bill of complaint was filed by Francis Jordan in his lifetime as a bill of interpleader, setting forth that on September 8, 1888, there was deposited with him, as a trustee and in escrow, a package of eighty-four notes executed by different parties, and made payable to the treasurer of the Indiana & Lake Michigan Railway; that said notes were identical with each other in the time and conditions expressed, except the words expressing the amounts payable, and that such notes were executed shortly before such deposit. A specimen copy of such notes reads as follows: 'St. Joseph, Berrien County, Mich., _____, 1888. In consideration of the construction of a standard-gauge railroad by the Indiana and Lake Michigan Railway Company, from South Bend, Indiana, to St. Joseph, Michigan, and making said St. Joseph the terminus of said Indiana and Lake Michigan Railway and the completion and operation of said railroad by November 1st, 1889, I promise to pay to the treasurer of said road, or bearer, the sum of _____, in thirty days after said road is constructed as aforesaid; this contract to be held by the president of the Union Banking Company until the construction of said road as above. __________.' The bill further alleges that the said Francis Jordan delivered to John Higman, at the time of said deposit of said notes, a receipt, which reads as follows: 'St. Joseph, Mich., Sept. 8, 1888. I have received this day from Fred Carlisle, per committee, consisting of Dr. L. I. McLin, Warren Ballengee, and John Higman, Jr., the following railroad notes, said notes payable to Ind. & Lake Mich. R. R. Company upon completion of said road as per contract.' Here follow list of names, with amounts opposite. At the end of the list of names is the following: 'St. Joseph, Mich., Sept. 8, 1888. I hereby certify that I have received this day from the parties above named, in trust for the parties interested, exclusively at their own risk. Union Banking Co.' The bill further alleges that in November, 1889, a large portion of the signers of said notes demanded of the complainant the surrender to them of said notes, on the ground that certain conditions precedent therein contained had not been performed by the Indiana & Lake Michigan Railway, and that the consideration thereof had failed; that he refused to deliver them to such signers; that subsequently Milton Wood, John C. Newton, Daniel H. Newton, and John W. Welch demanded of him, the complainant, the surrender of such notes to them, claiming to be the assignees of said Indiana & Lake Michigan Railway, and that they were legally entitled to the possession of said notes; that complainant refused to deliver said notes, or any of them, to the parties so demanding; that subsequently said Wood, John C. Newton, Daniel H. Newton, and Welch instituted an action of trover against him in the circuit court for the county of Berrien, claiming damages for the conversion of said notes, which action is still pending; that he asks the intervention of a court of equity to determine what parties are entitled to the possession of said notes; that the various parties may be called upon to defend their respective claims, and complainant be released from further expense and trouble of litigation in the matter. All the parties interested, together with the Indiana & Lake Michigan Railway, are made parties to the bill, and all have appeared and answered except said railway, and the case has been heard in open court on pleadings and proofs. The defendants Wood and others, who claim to be the assignees of said railway, in their answer claim that the conditions of the notes have been substantially complied with, and that the signers of the notes, for various reasons, are estopped in a court of equity from asserting a failure of consideration, or that the conditions expressed in the notes have not been complied with. The signers of the notes, in answering, claim that the conditions set forth in the notes were conditions precedent; that they were never complied with; and that the consideration has...