Naftzker v. Lantz

• Decision Date: 27 July 1904
• Citation: 100 N.W. 601,137 Mich. 441
• Court: Michigan Supreme Court
• Parties: NAFTZKER v. LANTZ et al.

100 N.W. 601

137 Mich. 441

NAFTZKER v. LANTZ et al.

Supreme Court of Michigan

July 27, 1904

Error to Circuit Court, Monroe County; Harry A. Lockwood, Judge.

Action by Jacob Naftzker against Henry Lantz and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Willis Baldwin, for appellants.

W. L McAran, for appellee.

HOOKER J.

The plaintiff sued the three defendants, father and sons, as copartners, in justice court, upon a promissory note signed 'Lantz & Co.' They appeared by counsel, and plaintiff declared upon the note, filing the same with the justice at the time of pleading, in conformity to the practice permitted by Comp. Laws,� 826, which provides: 'When any written instrument purporting to be executed by one of the parties is declared upon or set off, it may be used in evidence on the trial of the cause against such party, without proving its execution, unless its execution be denied by oath, at the time of declaring, or pleading, or giving notice of set off if such instrument shall be produced and filed with the justice.' The defendants pleaded the general issue accompanied by an unsworn notice that they would 'give evidence tending to show that said defendants never were partners, and that there is no joint liability among them upon the claim described in plaintiff's declaration, and that defendants Myron and Gordon Lantz did not undertake, assume, or become responsible for any part of the claim described.' The justice rendered a judgment for $86.76, including costs. It is stated, and not denied, that, though the defendants were present, they offered no evidence in support of the plea (and the record implies this), but afterwards appealed. On March 10, 1904, the cause was noticed for trial, and a week later defendants filed a motion for leave to amend their plea and notice, accompanying the same by an affidavit, made by Myron and Gordon Lantz, denying the execution of the note declared upon. This motion was denied upon the ground that it should have been filed at the time of joining issue. The motion was renewed at the time of the trial, two days after its first denial, and was again denied, the court stating: 'There has been a motion made in this case for an order allowing defendant to amend his plea by filing an affidavit denying the execution of this note by the two defendants Gordon and Myron Lantz. That motion has been denied, and is again renewed. I again deny the motion. I am of the opinion that under the justice of the peace acts the affidavit should have been filed at the time of filing the plea. I am also of the opinion that, if the court has power after the appeal to allow this amendment, notwithstanding the statute governing the justice court, that I should not allow it for the reason that it will materially change the issue in the justice court; in other words, would form a new issue in this court. For these two reasons I think the motion should be denied.' Upon the trial defendants' counsel offered to show that the so-called firm of Henry Lantz & Co. consisted solely of Henry Lantz; that previous to the time the note was given he had been in copartnership with two other men, but this was dissolved at the death of one of them, and Henry Lantz continued to use the firm name, though sole proprietor of the mill at the time the note was given; that the two other defendants worked in the mill for wages, and had no interest in the business; and that the note was the sole obligation of Henry Lantz. Testimony in support of this offer was rejected, and a verdict for plaintiff was directed by the court, and a motion for new trial was subsequently denied. Defendants have...