Merchants' Nat. Bank of Battle Creek v. Gregg

• Decision Date: 19 November 1895
• Parties: MERCHANTS' NAT. BANK OF BATTLE CREEK v. GREGG.
• Court: Michigan Supreme Court

64 N.W. 1052

107 Mich. 146

MERCHANTS' NAT. BANK OF BATTLE CREEK v. GREGG.

Supreme Court of Michigan

November 19, 1895

Error to circuit court, Bay county; Andrew C. Maxwell, Judge.

Action by the Merchants' National Bank of Battle Creek against John A. Gregg. Judgment for plaintiff. Defendant appeals. Affirmed.

Simonson Gillett & Courtright, for appellant.

T. A E. & J. C. Weadock, for appellee.

GRANT, J.

This suit is brought upon a railroad aid note, which is as follows: "$50. West Bay City, Mich., August 15th, 1888. For the purpose of promoting and aiding the construction of the Battle Creek & Bay City Railroad, and in consideration of the benefits to be derived therefrom, I do hereby promise and agree to pay to the order of Geo. H. Young, trustee, the sum of fifty dollars, payable when the road is constructed and the cars are running thereon from Midland to West Bay City Michigan. John A. Gregg." The declaration contained a special count setting forth the note or contract, and alleging that it was sold, assigned, transferred, and delivered to the plaintiff, and indorsed in writing as follows: "Without recourse. George H. Young, as Trustee." The declaration further alleged the fulfillment of the conditions in the note or contract. The defendant pleaded the general issue, with notice of special defense. The sole point now presented is that this is not negotiable paper, and that the indorsement by Young accompanied by delivery to the plaintiff, does not operate as an assignment. It is conceded that the instrument was not a promissory note with all the privileges of commercial paper. Defendant relies upon the following authorities: Brewing Co. v. McKittrick, 86 Mich. 191, 48 N.W. 1086; Story v. Lamb, 52 Mich. 525, 18 N.W. 248; Altman v Fowler, 70 Mich. 57, 37 N.W. 708. In Brewing Co. v McKittrick the suit was brought by the payee against the maker of the note. No question of assignment was involved, the sole contention being that 2 How. Ann. St. � 7346, did not authorize a declaration upon the money counts alone. In Story v. Lamb suit was brought against the indorsee of an instrument which was held not to be a promissory note. It was held that the indorsement of such a contract by the defendant Lamb did "no more than transfer the right to recover the money payable on the instrument, and the right to sue therefor, to Story." It was further said: "It is not an unusual way of transferring such claims, but such indorsement...