Marks v. Kindel

Decision Date27 June 1930
Docket NumberNo. 5506.,5506.
Citation41 F.2d 584
PartiesMARKS et al. v. KINDEL et al.
CourtU.S. Court of Appeals — Sixth Circuit

H. T. Gray, of Jacksonville, Fla., for appellants.

Elvin Swarthout, of Grand Rapids, Mich. (Benn M. Corwin, of Grand Rapids, Mich., on the brief), for appellees.

Before MOORMAN, MACK, and HICKENLOOPER, Circuit Judges.

MOORMAN, Circuit Judge.

This case was decided below on the sufficiency of the declaration as to all defendants except J. Keith Muir. There are three counts in the declaration. The first declares upon a purchase-money note for Florida lands; the second seeks to recover the unpaid purchase price "of certain lands in Orange County, Florida," irrespective of a note; and the third is a common count for money and property had and received. In response to a motion therefor, plaintiffs filed a bill of particulars under the common count stating that it was for the balance due on lands in Orange county, Fla., purchased April 19, 1926.

No question is made of the propriety of testing the sufficiency of each of the counts separately by a motion to dismiss the declaration as a whole. We cannot interpret any of the counts as resting upon anything other than a contractual obligation. The first and second are clearly based upon contract, and the third, as amplified by the bill of particulars, is for the balance due on the purchase price of land. Each seeks a personal judgment on a contract, and while no written contract is referred to in counts two and three, several coupon interest notes dated April 19, 1926, and a mortgage note of the same date for $12,300, are copied into the declaration as a part thereof immediately following the third count. All the notes were signed at Jacksonville, Fla., by J. Keith Muir, and no one else. The mortgage note refers to land such as is described in the pleadings, and it corresponds in amount of original obligation, cash payment, deferred payments, interest rates, and date of execution, with the contract set out in each of the three counts. It is to be treated, we think, as the contract referred to in each count, there being no allegation of other separate and valid contract purporting to bind the defendants. As thus construed, the question is whether under the facts alleged defendants (excluding Muir) are bound on the note.

It is the position of defendants that the note was a negotiable instrument under the laws of Florida, where it was given, and that it is immaterial that Muir was their copartner or agent, because the note was signed in Muir's name alone, and they cannot be held bound on a negotiable paper which they did not sign. The contention of plaintiffs is that the note was not negotiable for the reason that it obligated the maker after default to pay the cost of collection, including a reasonable attorney's fee, and therefore it was not for a "sum certain." They further contend that even if it was negotiable, Muir was a copartner or an agent of the defendants, and had the power to bind them to the note by signing his name to it alone.

The first contention of plaintiffs is obviously unsound, for the reason that the provision to the effect that Muir would pay the cost of collection, including a reasonable attorney's fee, did not become operative until after the maturity of the note, and consequently did not render the obligation uncertain. Wilson Machine Company v. Moreno (C. C.) 7 F. 806; Farmers' Bank v. Sutton Mfg. Co. (C. C. A.) 52 F. 191, 17 L. R. A. 595; First National Bank v. Miller, 139 Wis. 126, 120 N. W. 820, 131 Am. St. Rep. 1040. The other contention is to be considered in connection with the uniform negotiable instrument act, which has been adopted in both Florida and Michigan, and which...

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4 cases
  • Plains State Bank v. Ellis
    • United States
    • Kansas Supreme Court
    • June 6, 1953
    ...38 Cal.App.2d 688, 102 P.2d 396; Pratt v. Hopper, 12 Cal.App.2d 291, 55 P.2d 517; Falk v. Salario, 108 Fla. 135, 146 So. 193; Marks v. Kindel, 6 Cir., 41 F.2d 584. Appellant makes no claim that the notes sued on come within any of the exceptions referred to in the heretofore quoted section ......
  • Mahalsky v. Salem Tool Company
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • June 14, 1972
    ...Beard, 8 How. 451, 49 U.S. 451, 12 L.Ed. 1151 (1850); Willard v. Wood, 135 U.S. 309, 10 S.Ct. 831, 34 L.Ed. 210 (1890); Marks v. Kindel, 41 F.2d 584, 585 (6th Cir. 1930). In an action in the United States District Court in Ohio, the procedural law of Ohio must be applied in determining whet......
  • Parrish v. B. F. Goodrich Co.
    • United States
    • Court of Appeal of Michigan — District of US
    • March 29, 1973
    ...Levine v. Levine, 209 F.Supp. 564 (D.Del., 1962); Willard v. Wood, 135 U.S. 309, 10 S.Ct. 831, 34 L.Ed. 210 (1890); Marks v. Kindel, 41 F.2d 584 (C.A. 6, 1930). See also Restatement, Conflict of Laws, § 587, p. Michigan has treated actions for breach of warranty seeking recovery for persona......
  • Britton v. Mitchell, 8102.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • June 3, 1966
    ...is some question whether Oklahoma or Michigan law is controlling. However under either law, this would be the result. See Marks v. Kindel, 6 Cir., 41 F.2d 584. 8 § 19 of the Uniform Negotiable Instruments Law provides in part, "The signature of any party may be made by a duly authorized age......

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