Potter v. Tolbert

• Decision Date: 28 June 1897
• Citation: 71 N.W. 849,113 Mich. 486
• Court: Michigan Supreme Court
• Parties: POTTER v. TOLBERT.

71 N.W. 849

113 Mich. 486

POTTER v. TOLBERT.

Supreme Court of Michigan

June 28, 1897

Error to circuit court, Montcalm county; Sherman B. Daboll, Judge.

Action brought by Thomas J. Potter against James Tolbert to recover a balance claimed to be due on a promissory note. Defendant appeals. Reversed, and new trial ordered.

Humphrey & Grant, for appellant.

N. O Griswold (E. J. Bowman, of counsel), for appellee.

MOORE J.

This suit was commenced the latter part of 1895 to recover a balance claimed to be due upon a note dated January 8, 1887 signed by "Leroy Moore and Company," upon the back of which was an indorsement of "five hundred dollars paid January 9th, 1892." Defendant, Tolbert, filed with his plea a denial under oath of his execution of the note. The case was tried by a jury, who rendered a verdict for the full amount claimed by the plaintiff. Defendant appeals, and claims that under the proofs a verdict should have been directed in his favor. The plaintiff's testimony tends to show that for some years prior to 1884 defendant, Tolbert was a member of the firm of Leroy Moore &amp Co., who were engaged in the banking business at Greenville Mich. The plaintiff was a depositor in the bank, which suspended payment and closed its doors in June, 1884. The plaintiff was one of a committee of creditors and depositors. The committee met with Moore and Tolbert at or about the time of the suspension, and were told by Tolbert that he was a full partner in the business; that at this meeting there was a proposition made by the committee to call the creditors together, and recommend that they should take 60 cents on the dollar, and that Mr. Moore and Mr. Tolbert refused, saying they had always paid 100 cents on the dollar, and that all they wanted was time to liquidate; that after this time plaintiff was paid interest on the face of the account up to the date upon which the note was given. The plaintiff further testified that Mr. Moore had the active management of the bank during the time Moore & Co. were in business, and had the active management of liquidating their affairs; that there was due him on his deposit January 8, 1887, the amount stated in the note which he took on that date. He says he had no knowledge after the suspension of the bank and prior to the taking of the note that Moore & Co. had dissolved partnership, that the note was signed and delivered to him by Leroy Moore, and there was paid to plaintiff by Leroy Moore $500, January 9, 1892, and that at that time he had no notice of the dissolution of the firm. On the cross-examination he testified that he knew the firm Leroy Moore & Co. from the time they started business in Greenville until they suspended payment, and at times was a borrower of them; at the time of the suspension he was a creditor; that they carried on no business in Greenville but the banking business; that plaintiff was a lumberman, and handled a good many thousands of dollars each year through the bank of Leroy Moore & Co.; that their business was carried on at the corner of Cass and Lafayette streets in Greenville; that they closed their doors permanently in June or July, 1884, and has no recollection of their opening again, or of their doing business, after that. He further testified that this banking firm was succeeded by the City National Bank of Greenville in the summer of 1884, which bank occupied the place of business formerly occupied by Leroy Moore & Co. Plaintiff kept an account and made his collections through the City National Bank, of which Moore was first cashier, and then president; that after Moore became president he had active charge of the affairs of the City National Bank, and spent practically all of his time with it, and that the City National Bank continued to do business in the same rooms formerly occupied by Leroy Moore & Co. until 1893, when it suspended. He further testified that prior to 1884 Leroy Moore & Co. had a sign on their banking place during the entire time they were in business, reading "Leroy Moore & Co." When the City National Bank occupied the rooms the sign "City National Bank" was put up, and the sign "Leroy Moore & Co." disappeared; and that the note in suit was the only note he ever had for his deposit. He further testified it was well known that Leroy Moore & Co., after the suspension, were not doing any business in...