McEwan v. Ortman

• Court: Michigan Supreme Court
• Writing for the Court: Campbell, J:
• Citation: McEwan v. Ortman, 34 Mich. 325 (Mich. 1876)
• Decision Date: 20 June 1876
• Parties: John McEwan v. Charles L. Ortman

34 Mich. 325

John McEwan v. Charles L. Ortman

Supreme Court of Michigan

June 20, 1876

Heard June 9, 1876

Error to Bay Circuit.

Judgment affirmed, with costs.

Holmes Collins & Stoddard, for plaintiff in error.

John J Wheeler, for defendant in error.

OPINION

Campbell, J:

Ortman recovered in the court below on a promissory note made by McEwan. The latter complains, on error, that a valid defense was excluded. The defense there relied on was, that at the time of giving the note, in renewal of which the note in suit was made, it was a matter of pure accommodation, and that at the same time, at Ortman's request, McEwan signed a land contract for the purchase from Ortman and one William Boeing, of a tract of land for which the purchase price was six thousand dollars, the first installment of fifteen hundred dollars being in the contract declared to have been paid by the note in question. On the trial McEwan sought to show the following facts, as set forth in the assignment of error, viz:

"That before the commencement of this suit, and after the defendant had signed the instrument or indorsement upon the back of sad contract, bearing date the 25th day of August, 1875 [which was an indorsement by McEwan surrendering the contract], that he, the defendant, took and tendered it to Mr. Ortman; that the defendant had never any possession, use, control, or profit of the land mentioned in the contract; that when Mr. Ortman met the defendant as stated in the evidence the contract had already been prepared by him; that it never was read by the defendant at the time it was signed; that he didn't know its contents, and relied upon the statement of the plaintiff that he might take the contract and hold it, and that if he desired to return the contract, that he (the plaintiff) would take care of and pay the note, and that this stipulation in relation to the surrender and return of the contract was not in the written contract, it having been prepared before Mr. Ortman went there; that this agreement was really a part of the contract under which the note was made and delivered." The court refused to receive the evidence.

It can make no difference whether McEwan did or did not read the contract. He does not claim that he was deceived as to its contents by any art or device, neither did he object to its terms. The real defense insisted on is, that he and Ortman had a verbal agreement when the note was made...