Markey v. Corey

• Decision Date: 31 December 1895
• Citation: 66 N.W. 493,108 Mich. 184
• Court: Michigan Supreme Court
• Parties: MARKEY ET AL. v. COREY.

66 N.W. 493

108 Mich. 184

MARKEY ET AL. v. COREY.

Supreme Court of Michigan

December 31, 1895

Error to circuit court, Wayne county; Willard M. Lillibridge Judge.

Action by Matthew M. Markey and Catherine Sundars against Lorenzo Corey, impleaded with others. Judgment for plaintiffs, from which defendant Corey appeals. Affirmed.

Edgar Weeks (Moore & Moore, of counsel), for appellant.

Ervin Palmer, for appellees.

LONG J.

Defendant Corey entered into a written contract with Waldo and Varney for the sale of certain personal property at the sum of $2,500, payable $200 the first year, $500 the second, and $600 each year thereafter, until the whole amount should be paid, according to five promissory notes executed at the same time. The contract also provided that certain stock should be deposited by the purchasers as further security for the payments. It was then provided: "But in case said payments shall not be made as above provided, and in case either or any should remain unpaid for the period of ninety days, then the party of the first part shall, at his option have the right to declare the whole remaining amounts represented by said notes to have become due and payable." On the face of each of the promissory notes was written: "This note is given in accordance with the terms of a certain contract under the same date, and between the same parties." Subsequently the plaintiffs received from defendant Corey an assignment of all his right, title, and interest in and to the contract stock, and notes. On the back of the note in suit was indorsed, "I hereby assign the within note to Matthew M. Markey and Catherine Sundars." This $500 note was not paid, and was protested, and the plaintiffs brought his suit upon it against Waldo and Varney as makers, and Corey as indorser. The declaration was upon the common counts in assumpsit, with a copy of the notes attached. On the trial, however, the court permitted the plaintiffs to amend the declaration by averring the assignment of the contract and notes. The case proceeded to trial, and plaintiffs' counsel offered in evidence the note and indorsement of assignment on it, together with the certificate of protest. Defendant's counsel objected to their introduction as against defendant Corey, claiming (1) that the note in question was not a promissory note, and that plaintiffs could not recover upon it against Corey as indorser, but that, if they took any title to it, it was under the assignment; (2) that the contract was evidenced by the note and the other writing,-the contract of sale. Plaintiffs' counsel then put in evidence, under objection, the contract of sale. The court thereupon directed a verdict in favor of plaintiffs for the amount of the note and interest, from which judgment defendant Corey alone appeals.

It is insisted here, by counsel for defendant Corey: (1) That, if the plaintiffs took title to the note, it was under the assignment, and that, therefore, they could not sue in their own names, but, if they had a right of action, it must be brought in the name of the original parties to the contract; (2) that the two papers must be taken as constituting the contract, and that the note was not, therefore, a promissory note; (3) that Corey, by making the assignments to the plaintiffs, was not the indorser of the note, and could not be held liable as such.

The usual mode of transfer of a promissory note is by simply writing the indorser's name upon the back, or by writing also over it the direction to pay the indorsee named, or order, or to him or bearer. An indorsement, however, may be made in more enlarged terms, and the indorser be held liable as such. In Sands v. Wood, 1 Iowa, 263, the indorsement was, "I assign the within note to Mrs. Sarah Coffin." In Sears v. Lantz, 47 Iowa, 658, the indorsement on the note was, "I hereby assign all my right and title to Louis Meckley." And in each case the party so assigning was held as indorser, the court in the latter case saying of Sands v. Wood: "He used no words that, in and of themselves, indicated that he had bound or made himself liable in case the maker, after demand, failed to pay the note. But...