McCormick v. Bay City

• Decision Date: 10 October 1871
• Citation: 23 Mich. 457
• Court: Michigan Supreme Court
• Parties: James J. McCormick v. Bay City

23 Mich. 457

James J. McCormick v. Bay City

Supreme Court of Michigan

October 10, 1871

Heard October 3, 1871

Error to Bay circuit.

The case is fully stated in the opinion. The affidavit annexed to the plea which is referred to in the opinion, was as follows viz:

"James J. McCormick, the defendant in this suit, being duly sworn deposes and says, that he never in fact executed the instrument in writing mentioned in the plaintiff's declaration, but the facts with relation to the execution thereof are as follows: That about the day of the date of said instrument in writing, Robert McKinney, the principal in said instrument in writing, came to this deponent and stated that he wanted this deponent to sign the same; that this deponent did thereupon refuse to do so; that thereupon said McKinney told this deponent that he would procure the signatures of certain other responsible persons as sureties before the same was used; that said McKinney named the other persons who were to sign the instrument in writing, but deponent has forgotten who they were, and that it was agreed and understood between said deponent and said McKinney, that the instrument in writing should not be delivered to the plaintiff or to any one else unless at least four other responsible men signed it beside this deponent and said McKinney; that upon that express agreement this deponent signed the instrument in writing and delivered the same to said McKinney for him to get the other signatures, and that the same was delivered to said McKinney solely for that purpose; that said deponent is informed that the other persons named have not signed the said instrument in writing and without such other signatures the said instrument in writing has never been executed by this deponent."

Judgment reversed, with costs, and a new trial granted.

Maxwell & Hyde and Ashley Pond for plaintiff in error.

Marston & Hatch, for defendant in error.

OPINION

Campbell, Ch. J.

McCormick was sued on a bond for ten thousand dollars, given to secure the official conduct of Robert McKinney, as comptroller of Bay City.

The bond was set forth as a sealed obligation. On the trial, a bond without seal was introduced, purporting to be the joint and several bond of McKinney as principal and McCormick and three others as sureties. This was objected to for variance, but admitted without proof; the court holding that the affidavit annexed to the plea was not full enough to put the execution and delivery in issue. We do not think an affidavit of this kind should be subjected to any very technical rules of construction. If it appears that a defendant means to contest the execution or delivery in good faith, any legal questions concerning the sufficiency of the defense should be reserved for the trial, when the facts could all be presented. It never was designed that a defendant should be compelled in his affidavit to state every fact, but merely to indicate his defense, or to make a plain denial. The affidavit here could not be treated as an admission of valid execution.

The plea, if not accompanied by an affidavit, would admit the execution of the bond described in the declaration, but not of any other. Such an admission would not dispense with the necessity of its production in court. An instrument varying from that described would need to be proved; and even then could not be received without amending the declaration unless identical in legal effect and substance.

An obligation under seal differs in effect from one not sealed, in some important respects--both as to presumption of consideration and in the effect of the statute of limitations upon it. The statute, which declares that a bond shall not be invalidated for want of a seal, does not thereby make it a sealed instrument. The seal, apart from any other consideration, is an earmark and matter of description whereby one of two otherwise similar instruments would be readily distinguished from the other. The court could properly have allowed an amendment, and without some reason to the contrary, would have compelled the defendant to go to trial under the amendment. But to assume that there was no variance, and to receive the unsealed bond in evidence without proof of execution was going too far, and was error.

But as this difficulty will be removed on a new trial, it becomes necessary to examine into the other grounds of defense, which the court below shut out on the ground that there was no legal denial of a valid execution and delivery.

The offer was, in substance, to show that McKinney got McCormick to sign as surety while the names of the sureties and the penalty of the bond were in blank,...