Pinkham v. Cockell

• Decision Date: 01 November 1889
• Citation: 43 N.W. 921,77 Mich. 265
• Court: Michigan Supreme Court
• Parties: PINKHAM v. COCKELL.

43 N.W. 921

77 Mich. 265

PINKHAM v. COCKELL.

Supreme Court of Michigan

November 1, 1889

Error to circuit court, Oceana county.

W. E. Ambler, (L. G Rutherford, of counsel,) for appellant.

Gurney, Bickford & Travis, (F. J. Russell, of counsel), for appellee.

CAMPBELL, J.

Plaintiff sued defendant in the Oceana circuit court, and recovered on the following instrument: "$1,235.00. Six months after date, for value received, I promise to pay to the First National Bank of Boise City, Idaho, in favor of E. Pinkham or order, the sum of twelve hundred and thirty-five dollars with interest at eight per cent. per annum. [Signed] HARVEY COCKELL. Chicago, Dec. 11, 1885." The declaration, in a special count, set up this paper, and averred "that the E. Pinkham mentioned in said written promise is the plaintiff in this suit, and that, to-wit, on the day and year and at the place aforesaid, and after the making of said promise the said First National Bank of Boise City, Idaho, assigned all its right, title, and interest in and to said promise or contract to the said plaintiff." It also contained the common counts for goods sold and delivered, and for work and materials, as well as the money counts, with notice that the plaintiff would introduce in evidence, under the money counts, the promissory note before referred to. The copy annexed contained nothing but the face of the paper. The defendant pleaded the general issue, and gave special notice of want of consideration, and set out that the paper was given in a horse trade, in which plaintiff gave false representations and a false warranty; and asked for recoupment of damages. On the trial the paper in question was introduced in evidence, and showed on its back this indorsement; "E. Pinkham: Pay to the order of Citizens' Exchange Bank, (Hart, Mich.,) for collection, for account of First Nat. Bank of Idaho. JOHN HUNTOON, Cashier." A line had been drawn through all the words between "Pinkham" and "First Nat Bank," etc. Against defendant's objection, this note was received in evidence, without any proof of signatures of any one; and plaintiff's attorney, Mr. Travis, proved the computation of interest, and was the only witness produced by plaintiff in making out his opening case. Defendant's counsel cross-examined Mr. Travis, who swore that his firm received the paper, in the spring of 1887, from the bank at Hart, having the indorsement, with no part of it erased, and that they sent it to the First National Bank of Idaho, from which it came back, with the erasure. Whether this was before or after the suit-which was by attachment-was begun, he could not say. On redirect examination, he testified that he never saw Huntoon write, but had one or two letters from him, and saw two or three the Citizens' Exchange Bank had, and thought the signature was his. The note did not come into the hands of witness till after due. He was not sure of having received more than one letter, and whatever he had were lost or destroyed. In response to plaintiff, he said the letter-head read, "First National Bank, Idaho," and John Huntoon signed as cashier; that he did not know but there were two national banks at Boise City, Idaho,-one First National Bank, Boise City, Idaho, and one First National Bank, Idaho. Defendant objected again to the introduction of the instrument for want of sufficient proof of Huntoon's signature, or of his authority to sign, and also because it does not purport to be signed on behalf of the bank named in it, but on behalf of a different bank. The court overruled the objections, and plaintiff rested his case. Defendant put in testimony in support of his plea showing the note was given for a lot of horses warranted and represented to be sound, and that they were worthless,-most of them dying, and the rest of no value. The testimony, if believed, made out a full defense. Plaintiff introduced himself, and some other witnesses, in rebuttal,-including two letters of defendant, which he claimed were the only two he happened to have kept, and to which defendant's counsel objected, because the rest of the correspondence should have been produced. The question of handwriting of these became immaterial. Plaintiff offered a deposition taken at Chicago, before a notary public, which was objected to because there was no proof he was a proper officer, and because the notice should have been 20 days, and was short of that. He introduced the affidavit of Mr. Ambler that the distance from Pentwater to Chicago was 240 miles, and it was more than 242 miles to the notary's office. Plaintiff's counsel made affidavit...