Mattison v. Marks
| Decision Date | 13 April 1875 |
| Citation | 31 Mich. 421 |
| Court | Michigan Supreme Court |
| Parties | James Mattison v. Owen R. Marks |
Heard April 6, 1875
Error to Van Buren Circuit.
Judgment reversed, with costs, and a new trial ordered.
Newton Foster, for plaintiff in error.
Richards & Barnum, for defendant in error.
The view of the circuit judge, that the evidence introduced on the part of the defendant tended to show the note in suit to have been paid by Almanson M. Mattison, appears to us untenable. This person, it appears, had a mortgage which covered the same premises as the mortgage which secured the note in suit. His mortgage he had foreclosed, and had become the purchaser of the property, but to protect his title, it was necessary that the prior mortgage should be taken care of. This he could only do by purchasing it, or paying it off; but whichever form the transaction assumed, he would be entitled to be subrogated to the rights of the former holder, and might enforce payment fro the parties who were responsible therefor. There is no ground on which the maker and endorser of the note secured by the first mortgage can claim that the taking up of that note by a second mortgagee, with whom they were in no way in privity, can operate to release them from their obligation to pay it. Whether the second mortgagee takes a formal assignment or not, such a transaction makes him in equity an assignee, and he is entitled to resort to all suitable remedies to enforce payment.--Russell v. Howard, 2 McLean 489; Downer v. Fox, 20 Vt. 388.
This view will dispose of the case, unless the defendant is correct in the position he takes, that the paper sued upon is not a promissory note. If it is not, the suit must fail because the declaration has treated it as such, and is not adapted to the case of any other special contract. The objection to this instrument is, that it promises to pay a certain sum of money "on or before" a day named; and this, it is said, is not a promise to pay on a day certain, and consequently cannot be a promissory note. We are referred to Hubbard v. Mosely, 11 Gray 170, in support of this view. That case certainly seems to support the position of defendant, and it is to be regretted, perhaps, that the learned judge who delivered the opinion, did not deem it important to present more fully the reasons that led him to his conclusions, instead...
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First Nat. Bank of Springfield v. Skeen
...affirming it. He then says: " So a note payable on or before a certain day; for as said in such case by Cooley, J., in Mattison v. Marks, 31 Mich. 421: ‘ legal rights of the holder are clear and certain; the note is due at a time fixed, and it is not due before. True the maker may pay soone......
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Arnett v. Clack
...it provides a certain time when it must be paid at all events, and the right of the holder to enforce payment becomes absolute. Mattison v. Marks, 31 Mich. 421; Jordan v. Tate, 19 Ohio St. Woollen v. Ulrich, 64 Ind. 120. Now, the note in question names a definite time when it must be paid. ......
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Gallaiier v. City Of Moundsville.
...High Inj. (2nd Ed.) § 497; 47 la. 42; Acts 1872, c. 141, s. 9; Code, c. 85, s. 16; 2 Par. Cont. (5th Ed.) 510 note; 19 Ohio St. 586; 31 Mich. 421, 423; 77 Ind. 371, 376; 96 U. S. 433, 440; 33 Gratt. 245, 250. J. J. Jacob of counsel for appellant, cited Gr. Br. Ult. Views 268 note a.; 2 Dan.......
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...payable 'on or before' a specified date fixed with certainty the time of payment. Riker v. A & W Sprague Mfg. Co., 14 R.I. 402; Mattison v. Marks, 31 Mich. 421; First National Bank v. Skeen, 101 Mo. 683, 14 S.W. 732, 11 L.R.A. 748; Union State Bank v. Benson, 38 N.D. 396, 165 N.W. 509, L.R.......