Rumney v. Coville

• Decision Date: 02 July 1883
• Citation: 51 Mich. 186,16 N.W. 372
• Court: Michigan Supreme Court
• Parties: RUMNEY v. COVILLE and others.

16 N.W. 372

51 Mich. 186

RUMNEY v. COVILLE and others.

Supreme Court of Michigan

July 2, 1883

On reargument, held, that as the evidence shows that the note upon which suit is brought was deposited as security for the performance of a contract to convey certain land described therein, and no suit had been brought to enforce such contract, or for damages for a breach thereof, suit on the note could not be maintained, and the former opinion is withdrawn.

Error to superior court of Detroit.

Charles M. Swift, for plaintiff.

Hawes &amp Phelps, for defendants and appellants.

COOLEY J.

This case was argued and submitted at the last January term, and a decision made reversing the judgment, and ordering a new trial; [S.C. 15 N.W. 56.] Subsequently, on application of the plaintiff, the parties were allowed to file briefs in reargument.

The action is upon a promissory note for the sum of $598.25 given by the firm of A.M. Coville & Co., payable to the order of defendant, John Webster, and by him indorsed. The question in the case is whether this ever became an effective promissory note. The facts bearing upon the question appear to be the following:

In the year 1878, Martha J. Rumney, of Detroit, died, leaving a last will and testament, whereby, after a specific gift not necessary to be here described, and after a residuary gift of her property to her five children equally, she made the following provisions:

"I will and direct that the share of my estate hereinbefore bequeathed and devised to my sons Benjamin Rumney and Henry R. Rumney shall remain in the hands of my executors until they reach respectively the age of twenty-five years receiving, meantime, the income from the same; leaving it, however, to the wisdom and discretion of my executors to deliver to them respectively their shares of said estate at any time after they reach the age of twenty-one, or any part thereof, if said executors are fully satisfied in either case that said share will be safely, wisely, and judiciously used.

"I hereby nominate and appoint my son John G. Rumney and my friend Guy F. Hinchman the executors of this, my last will and testament, with full power and authority to sell and convey any real estate of which I shall die seized."

The will was probated, and John G. Rumney duly qualified as executor, and received letters testamentary, but Hinchman renounced the trust.

April 4, 1882, John G. Rumney made a bargain with defendant Webster to sell to him the homestead property of the Rumney estate for a price agreed upon, and gave him a contract, by the terms of which the trade was to be consummated within a reasonable time,...