Ortmann v. Canadian Bank of Commerce
| Decision Date | 31 October 1878 |
| Citation | 39 Mich. 518 |
| Court | Michigan Supreme Court |
| Parties | Charles L. Ortmann and Sigmund Rothschild v. The Canadian Bank of Commerce |
Submitted October 17, 1878
Error to the Superior Court of Detroit.
Assumpsit. Defendants bring error.
Judgment affirmed with costs.
Griffin & Dickinson for plaintiffs in error. An indorser has been protected by the indorsee's oral agreement at the time of the indorsement, that the drawer or acceptor alone should be responsible, (Pike v. Street, Mood. & M., 226; Girard Bank v. Comly, 2 Miles 405) or that the maker should be first sued, Wright v. Latham, 3 Murph. 298; where an indorsement is in blank, the actual contract can be shown by parol, 2 Pars. N. & B., 519.
Walker & Kent for defendant in error.
The bank recovered in the court below against Ortmann as maker and Rothschild as endorser of a note for $ 1175.50, drawn payable to Rothschild's order at the American National Bank, at the city of Detroit.
The defense set up was that when Rothschild endorsed it was verbally agreed between him and the bank, that if he would pay and take up certain notes made by George Campbell & Co., and used by Ortmann on the Detroit side of the river on Rothschild's endorsement, the bank would cancel this endorsement or relieve Rothschild from liability on it and look to Campbell & Co., and to security the bank had taken from them for the money called for by the note, and that Rothschild was to be liable on the endorsement only in case he should not pay said notes on the Detroit side, and that pursuant to this arrangement he paid the paper in question, and that the bank understood when the note was taken that he was endorser for accommodation merely.
The defense offered parol evidence to make out the state of facts indicated, and counsel for the bank objected that it was not competent. The court, however, ruled that the evidence might be gone into, and subsequently allowed the counsel for the defense great latitude under the ruling. At length objections were sustained to questions in this line of inquiry as remote and unnecessary, and to the further continuance of a loose examination on the same subject, when the court was of opinion that to carry it further would not in fair practice be proper. These rulings are complained of. Error is charged also on a fragment of the instructions to the jury, but it seems to be abandoned. The brief does not refer to it.
The court erred in allowing the defendants below to give evidence of an unwritten agreement made at the very time of the endorsement, for the purpose of changing its legal import and converting it into an undertaking subject to...
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...his lifetime, the mortgage was to be forfeited, and say parol evidence is not competent; citing Martin v. Hamlin, 18 Mich. 354; Ortman v. Bank, 39 Mich. 518, 519; Kulenkamp v. Groff, 71 Mich. 675, 679, 40 N.W. 57, L. R. A. 594; Nichols v. Crandall, 77 Mich. 401-411, 43 N.W. 875, 6 L. R. A. ......
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... ... Martin, 95 U.S. 97, and Dery Bank v. Baldwin, ... 41 N.H. 434. [62 Mich. 478] The sixth and seventh ... Hamlin, 18 Mich. 354; Hyde v. Tenwinkle, 26 ... Mich. 92; Ortmann v. Canadian Bank of Commerce, 39 ... Mich. 518; Sibly v. Muskegon Nat ... ...
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Nimmo v. Supernaw, January term, 1937
...resting on extrinsic matters, and containing terms depending upon the uncertain recollection of the parties.’ Ortmann v. Canadian Bank of Commerce, 39 Mich. 518. See, also, Kulenkamp v. Groff, 71 Mich. 675, 40 N.W. 57,1 L.R.A. 594, 15 Am.St.Rep. 283;Palmer Nat. Bank v. Van Doren, 260 Mich. ......