Kent v. May

• Decision Date: 27 October 1864
• Citation: 13 Mich. 38
• Court: Michigan Supreme Court
• Parties: Henry A. Kent and others v. William B. May and others

13 Mich. 38

Henry A. Kent and others v. William B. May and others

Supreme Court of Michigan

October 27, 1864

Heard April 6, 1864

Case made after judgment, from St. Joseph circuit.

Assumpsit on a promissory note executed by the defendants to the plaintiffs.

Plea the general issue, with notice of special matter.

Trial by jury.

On the trial the execution of the note declared upon was admitted. It was proved that after the note of the defendants became due, and on the 11th September, 1857, Kent, Lowber and Smyth the plaintiffs, entered into a written agreement with William B. May, one of the defendants, which agreement was in the following terms:

"In consideration of the indorsement by May and Cloyes to Kent Lowber and Smyth, as collateral security of two promissory notes made by Asahel Clapp and Son, bearing date respectively August 24th, 1857 -- one for $ 500, at twelve months, the other for $ 453.74, at eighteen months--and the agreement of said May to pay the sum of $ 553.74 in sixty days from the present date, according to the terms of a promissory note of this date, of William B. May, in favor of T. G. Harris, to be applied on a certain note made by William B. May, J. W Cloyes, Charles Cooper and John Hotchin, in favor of said Kent, Lowber and Smyth, dated September 14th, 1856, payable in four months from its date, for the sum of $ 1,414.98, it is stipulated and agreed on the part of said Kent, Lowber and Smyth, that no proceedings shall be instituted for the collection of the last mentioned note, till either of the notes herein mentioned as assigned as collateral security for the payment of said note to Kent, Lowber and Smyth, shall have been dishonored by non-payment."

It was also shown that the note for $ 553.74 was given for the balance of the defendants' note for $ 1,414.98, after deducting the amount of the Clapp notes, and the two notes of Clapp & Son had been paid; that the note for $ 553.74 had never been paid, and that William B. May had gone to California. The plaintiffs insisted that they were entitled to recover in this action the amount of said last mentioned note, but the court charged the jury that by the payment of the Clapp notes the defendants were discharged from all liability on their note, and the plaintiffs could not recover. The plaintiffs excepted, and the jury, under charge of the court, returned a verdict for the defendants.

Judgment affirmed.

Riley &...