Newberry v. Trowbridge

• Decision Date: 09 May 1865
• Citation: 13 Mich. 263
• Court: Michigan Supreme Court
• Parties: Henry W. Newberry and Walter C. Newberry, executors of Oliver Newberry, v. Charles C. Trowbridge and John Owen

13 Mich. 263

Henry W. Newberry and Walter C. Newberry, executors of Oliver Newberry, v. Charles C. Trowbridge and John Owen

Supreme Court of Michigan

May 9, 1865

April 11, 1865; April 12, 1865, Heard [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

The facts are sufficiently stated in the opinion.

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

Newberry & Pond, and G. V. N. Lothrop, for plaintiffs in error:

1. The testimony tending to show Oliver Newberry's ownership of, and dealings in regard to a note, in payment or renewal of which the note sought to be recovered upon appears to have been given, was wholly irrelevant.

The issue was, whether the proper steps had been taken to fix the liability of Oliver Newberry and Benjamin B. Kercheval, as indorsers of the last mentioned note; and if not, whether said Newberry and Kercheval had, by their subsequent conduct, waived any laches in that respect.

Being thus irrelevant and immaterial, unless it can be seen that said testimony could not by any possibility have injured the defendants, its admission was fatally erroneous: Underhill v. N. Y. & H. R. R. R. Co., 21 Barb. 489; Myers v. Malcolm, 7 Hill 292; F. & M. Bank., v. Whinfield, 24 Wend. 420; Clark v. Vorce, 19 Wend. 232.

2. The seventh assignment of error is well taken. The testimony offered was admissible, as tending to show the amount due on said note.

It had already appeared that O'Flynn (or Mrs. O'Flynn) was the real party in interest in this suit, and the owner and holder of said note; that he (or she) claimed title through said Conant, into whose possession said note had come as receiver in a suit to which the plaintiffs were parties defendant, and who had sold the same to O'Flynn. Conant, whilst so in possession of said note, had authority, and it was his duty, to receive payments thereon. His statement, or admission, therefore, made whilst he so held said note, as to the amount claimed to be due and unpaid thereon, would, as against himself and those claiming under him, be prima facie evidence of the extent of the amount so due and unpaid.

3. The ninth assignment of error is based upon the rejection of the evidence offered to establish a claim by way of set-off.

The ground of the rejection of this testimony was, that there were several defendants, and that the debt proposed to be set off was not due to them all jointly: Subdiv. 6 of § 4213, Compiled Laws.

It is true that the suit was originally against several defendants, but upon the death of Kercheval it ceased to be so: §§ 4212, 4213, Compiled Laws. And the notice of set-off was filed by leave of court after his death.

4. The tender made in depreciated bank-bills was a conditional offer to pay, or an offer to pay in a particular manner, and, not having been accepted, was not evidence of a waiver of the laches in giving notice, or an admission of liability: Taylor v. Jones, 2 Camp. 106, note; Standage et al. v. Creighton, 5 C. & P., 406; 1 Parsons on Notes and Bills, 600; Crain v. Colwell, 8 Johns. 384; Agan v. McManus, 11 Johns. 180; Sice v. Cunningham, 1 Cow. 397; Barkalow v. Johnson, 16 N. J., 397.

5. Where it affirmatively appears that legal notice was not given, mere proof of a payment is not sufficient to constitute a waiver. Plaintiffs, in such case, are bound to go further, and to show that the payment was made with full knowledge of the laches: 1 Parsons on Bills and Notes, 601; Byles on Bills (Sherwood), 237, note p; Trimble v. Thorne, 16 Johns. 152; Harrs v. Allnut, 12 La. 465; Bank v. Harper, 12 Rob. (La.), 231.

6. When the legal title and actual possession of a promissory note is transferred by the plaintiff, pending a suit thereon, such suit can no longer be sustained: Lee v. Jilson, 9 Conn. 94; Curtis v. Bemis, 26 Conn. 1.

C. I. Walker, and D. C. Holbrook, for defendants in error:

1. Defendants offered to prove that, at the time of the receiver's sale, the amount due on the note was stated to be $ 3,064 36/100, and that said O'Flynn bought said note with notice thereof, i. e., with notice of the statement.

It will be noticed that the offer does not show who made the statement, for what purpose it was made, or whether it was true or false.

This testimony was entirely immaterial. The defendants were not parties to that case, and if the amount stated to have been due had been overrated, they would not be estopped from showing what was the real amount due. Nor can they claim any benefit from such statement. Estoppels are mutual.

2. The defendant's claims in set-off were rightly rejected.

1st. They were claims against the bank, not against the plaintiff.

2d. There is no pretense that they were claims against the bank at the time of the assignment, by the bank, or of the commencement of this suit.

3. There are several exceptions relating to the charge, and the refusals to charge the jury as to the effect of the written evidence of George C. Bates, as to a tender made to the bank in full of this note, in the bills of the bank.

The court refused to charge that such tender, or offer to pay, by Newberry, was not in law a waiver of notice of dishonor, or an acknowledgment of his liability on said note, and did charge that the evidence of Bates did not tend to prove that such offer was by way of compromise, or that it was intended as such by Newberry; but that, if made with a knowledge of the facts, and to the full amount of the note, it tended to prove an unqualified acknowledgment of his liability, and that they were not at liberty to consider such tender as an attempt to compromise said claim without some evidence to that effect.

We submit that both the refusal and the charge were right.

Compromise is "an amicable agreement between parties in controversy to settle their difficulties by mutual concessions; a mutual agreement and adjustment: Webster. Tender is an adversary proceeding, made not by way of agreement and adjustment, but for the protection of the real or supposed rights of the person making it. The proceeding in this case was very clearly of the latter kind, and the testimony has not the slightest tendency to prove an attempt at negotiation or compromise.

4. The only further assignment of error (the twelfth) is to the charge made by the court as to the effect to be given to the testimony of A. H. Sibley.

Sibley testified in relation to the payment of $ 1,245, made February 1st, 1842. He testifies that he spoke to Newberry about the payment of this note, claiming that, inasmuch as he had procured the note to be discounted, and received the money upon it, he was bound in honor to take it up, and that he now recollected of the payment upon this note, that it was paid in Bank of Michigan, by Mr. Newberry himself, after the bank had failed.

The plaintiff failed to prove the proper service of notice on Newberry.

But it is well settled that, in such cases, the offer or promise of the indorser to pay, a distinct acknowledgment of his liability, or his making a part payment, is of itself presumptive evidence of demand and notice, and dispenses with any further evidence: 1 Parsons on Notes and Bills, 612-15, 623-5; Tebbetts v. Dowd, 23 Wend. 379; Margetson v. Aitkin, 3 C. & P., 338; Dixon v. Elliott, 5 C. & P., 437; Croxon v. Worthen, 5 M. & W., 5; Sherer v. Easton Bank, 33 Penn. 140; Loose v. Loose, 36 Penn. 538.

Nor does the fact that the plaintiff attempted to prove the service of notice, and failed, make any difference: Jones v. O'Brien, 26 E. L. & Eq., 283; Sherer v. Easton Bank, 33 Penn. 140.

There being no evidence in the case to rebut the presumption of a proper service of the notice, the court rightfully charged the jury that, if they believed the testimony of Sibley as to such payment, then the plaintiff was entitled to such a verdict: 1 Parsons' Notes, 622; Bank of U. S. v. Lyman, 20 Vt. 666; Sherer v. Easton Bank, 33 Penn. 134.

But, even if this was a case where the notice or service thereof was clearly defective, and proved to be so, we insist that the charge was rightfully made.

It is true that, in such case, it is laid down that the facts relied upon to prove a waiver must have occurred with a knowledge of the laches or a defective notice: 1 Parsons on Notes, 701-2.

If the notice was defective, both in form and in the mode of service, still they were defects that must have come to the knowledge of the defendants.

The notice to Kercheval was deposited in the post-office; that to Newberry, if not served personally, was also deposited in the post-office. It will be presumed that these notices were received by the persons to whom directed: 1 Parsons on Notes, 619, n., 626; 1 Greenleaf's Ev., 340; 1 Edwards's Phillips, 645.

This being the case, the defects, both of form and mode of service, are, by this presumption, brought home to both of the parties. This presumption is strengthened by the lapse of time that took place between the dishonor of the note and the facts relied upon to prove that waiver, and a simple promise or acknowledgment of liability or part payment, under such circumstances, is prima facie, sufficient proof of waiver without any direct proof of knowledge: 1 Parsons on Notes, 600-2 and 3; Byles on Bills, 237; Loose v. Loose, 36 Penn. 538; Levy v. Peters, 9 S. & R., 125; Walker v. Laverty, 6 Mumf. 487; Pate v. McClure, 4 Rand. 171; Zacharie v. Kirk, 14 La. An., 433; Curtiss v. Martin, 20 Ill. 557; Ladd v. Kenny, 2 N. H., 340; Cram v. Sherburne, 14 Me. 48; Jones v. O'Brien, 26 L. & E., 283.

But even if it was necessary to prove a knowledge of these laches on the part of defendants, there was ample evidence on that point to go to the jury; and, taking the whole charge together, we submit that they...