Miller v. Finley

• Decision Date: 23 November 1872
• Citation: 26 Mich. 249
• Court: Michigan Supreme Court
• Parties: Miles B. Miller v. Hugh Finley, Jr., and another

26 Mich. 249

Miles B. Miller v. Hugh Finley, Jr., and another

Supreme Court of Michigan

November 23, 1872

Submitted on Briefs October 31, 1872.

Error to Kalamazoo circuit.

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

May & Buck, for plaintiff in error.

J. W Breese and H. F. Severens, for defendants in error.

OPINION

Campbell, J.:

Miller sued below upon a joint and several promissory note. Both defendants pleaded the general issue, and Hugh Finley, junior, appended to his plea an affidavit denying the execution of the note by himself. No notice of any kind was filed or served with the plea.

Upon the trial the defense was rested upon several grounds. It was claimed that Hugh Finley, senior, signed the note without the consent of Hugh Finley, junior, his son, who, it was alleged, refused to assent to having him sign, and after the note had been delivered as the sole note of the son. It was further claimed that when he signed it, he was in such a state of drunkenness, procured by the original payee, that he was not responsible for his acts. It was also set up, that the note was one of several obtained by fraud, as the price of a worthless patent, for a horse-collar fastener.

Miller claimed as a bona fide holder. Judgment was rendered for defendants below, and he now brings error.

The whole testimony given in the court below, concerning the character of the patent-right, was, we think, wrongly admitted. There was no question concerning the transfer of the patent-right, and such a right is a right of property. Its value being incapable of reduction to any fixed sum, and being altogether a matter of opinion, any price agreed upon, unless manifestly exorbitant, would be enforced, in the absence of fraud and misrepresentation. A note given for the price can not be regarded as a note given without consideration; and any defense arising out of such circumstances must be specially pleaded, and cannot be shown without notice. All the testimony admitted for the purpose of showing the worthlessness of the patented invention, was therefore irrelevant, and it was error to admit it.

It is also claimed by plaintiff in error, that the alteration in the note, whereby Hugh Finley, senior, became a party to it was not, as to the original signer, a material alteration. There is no doubt that any material alteration in a note, without the consent of the party responsible on it, and affected by it, will destroy it as to him: Wait v. Pomeroy , 20 Mich. 425; Holmes v. Trumper, 22 Mich. 427; People v. Brown, 2 Doug. R., 9. And there can be no question but that an addition to the number of signers of an instrument may in some cases, at least, affect the operation of it, as to some or all of those who have already signed.

The doctrine is settled in New York, that procuring the signature of a party, whose name was not originally on a note, is not necessarily material as to the first signers. In Muir v. Demaree, 12 Wend. 468, where holders, in order to get a note discounted, signed their own names as makers, in addition to the rest--the note being joint and several--and afterwards paid it, they were held to have lost no rights, and to be authorized to sue it themselves, or transfer it to others. In McCaughey v. Smith, 27 N.Y. 39, where holders, without an indorser's knowledge or consent, procured a second name to a sole note, for the purpose of adding to their security, it was held not to be such an alteration as affected the indorser. A similar principle was recognized in Brownell v. Winnie, 29 N.Y. 400. There are some decisions bearing more or less on both sides, in other states. Only two English decisions bearing upon the question directly, have been cited. In Catton v. Simpson, 8 Ad. & El., 136, it was held that an additional party signing without a new stamp was not bound by his signature, and that the alteration, therefore, was not material. In that case the original note was signed by a principal and surety, jointly and severally, and the new name was procured by the principal for an extension of time. The original surety paid the note, and sued his principal for the money paid to his use. The principal defended, on the ground that the payment was voluntary, because the surety had been discharged by the alteration, and had no right to pay the note; but his defense was rejected.

In Gardner v. Walsh, 5 El. & Bl., 83, a principal and surety made a joint and several promissory note, and a second surety was added without the knowledge or consent of the first. A several action was brought against the first surety, who was held discharged by the alteration; and the court expressed an opinion that the former decision was not law.

In the recent case of Aldous v. Cornwell, L. R., 3 Q. B 573, Catton v. Simpson is cited as authority on the point that an alteration will not vitiate unless material; and the case of Gardner v. Walsh was referred to, merely to say, that it only overruled the former case on the question whether such an alteration as that passed upon was material. Aldous v. Cornwell is somewhat pointed in condemning the early decisions which paid no attention to the materiality of alterations. And the doctrine that immaterial alterations should not be regarded,...