Seiber v. Price
| Decision Date | 09 April 1873 |
| Citation | 26 Mich. 518 |
| Court | Michigan Supreme Court |
| Parties | Martin Seiber v. Jefferds Price |
Heard January 15, 1873
Error to Wayne circuit.
The agreement declared upon, and referred to in the opinion, is as follows:
"Whereas heretofore to wit, on or about the seventh day of November 1867, Jefferds Price sold and delivered two horses to Martin Seiber, of Detroit, for one hundred and ninety-six dollars and also said Jefferds Price gave to said Seiber, his note of twenty dollars, for which he, said Price, received from said Seiber two promissory notes given by Alexander Eaton, jr., for one hundred dollars each, dated the sixth day of October, 1866, payable one year after date at seven per cent., and whereas, it appears and is conceded that the said Alexander Eaton, jr., is a bankrupt, and whereas, also, one George Brooks has indorsed said notes in blank, and the said indorsement is by said Seiber claimed to be a guarantee of the payment of said notes for a valuable consideration, and whereas, it is claimed by said Price that the facts are such that the said notes were of no value to him at the time he received them from said Seiber, and that said Seiber is liable legally to him for the price of his said horses, sold to said Seiber; now, therefore, for the purpose of settling all controversy between the said Seiber and said Price in said matter, and in consideration of one dollar by said Price to him, said Seiber, paid by said Price, the said Seiber hereby agrees that he will, at his own expense and proper charges, proceed and immediately prosecute said Brooks, whose name is indorsed on said notes, for the same, and proceed with all possible speed to collect the amount thereof from said Brooks, who resides in Detroit, and if the same shall be collected of said Brooks, he will pay over to said Price, one hundred and ninety-six dollars and interest on the same at seven per cent. from the seventh day of November, 1867, on or before the first day of July, 1868; and in case the same shall not be collected and paid over, then the said Seiber agrees that he will pay to said Price the said sum of one hundred and ninety-six dollars and the interest thereon at the rate above mentioned from the sixth day of November, A. D. 1867, the date of said sale of horses, and the said Seiber also agrees to, and does surrender to said Price, for the aforesaid consideration, the note which Price gave him, for twenty dollars."
Judgment reversed, with costs, and a new trial ordered.
S. Larned and F. A. Baker, for plaintiff in error.
Charles Draper and W. N. Draper, for defendant in error.
This was a suit by defendant in error, on a covenant set out in the declaration, and the first objection is, that a breach is not assigned.
The plaintiff in error contends that his covenant was in the alternative, and that he had the right either to collect the Eaton notes of Brooks, and pay over the agreed sum from the proceeds on or before July 1, 1868, or after the latter date to pay the same sum from his own means, and that the averment of non-payment after July first, did not negative performance through collection of Brooks, and payment out of such collection, but merely negatived the...
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