Stewart v. First National Bank of Port Huron

• Decision Date: 31 January 1879
• Citation: 40 Mich. 348
• Court: Michigan Supreme Court
• Parties: William Stewart and Wallace Ames, impleaded etc. v. The First National Bank of Port Huron

40 Mich. 348

William Stewart and Wallace Ames, impleaded etc. v. The First National Bank of Port Huron

Supreme Court of Michigan

January 31, 1879

Submitted January 17, 1879

Error to St. Clair. Submitted Jan. 17. Decided Jan. 31.

Judgment reversed with costs and a new trial granted.

Whipple & Voorheis for plaintiffs in error.

O'Brien J. Atkinson and Elliott G. Stevenson for defendant in error. If an endorser on a note assents to an alteration after it has been made, he is bound, (Gardiner v. Harback, 21 Ill 129; Pelton v. Prescott, 13 Ia. 567; Commercial Bank v. Warren, 15 N.Y. 577; Brandt on Suretyship, pp 334, 450), and a subsequent ratification of an unauthorized act is equivalent to precedent authority and relates back to the time it was done (Martin v. Judd, 60 Ill. 78; Paul v Berry, 78 Ill. 158; Dow's Ex'r v. Spenny's Ex'r, 29 Mo. 386), and no new consideration is necessary for the subsequent assent, First Nat. Bank v. Gay, 63 Mo. 33.

Campbell, C. J. The other Justices concurred.

OPINION

Campbell, C. J.

Suit was brought by the bank on three negotiable promissory notes of $ 500 each, made at three months each, on April 5th, May 10th, and June 9th, 1876, by the Daniels Italian Marble and Burial Case Company to the order of seven persons of whom plaintiffs in error formed a part. These notes were given to raise money for the marble company, and were originally endorsed by nine directors. Stewart's name was signed last on each one, but all three were signed at the same time though dated at different times. After the first note had been negotiated at the bank an arrangement was made with the bank's consent whereby two of the endorsers named Baer and Greib were allowed to have their names erased, on making certain arrangements with the marble company. The second and third notes were negotiated after the names were erased. All the endorsers but Stewart were direct parties to this agreement. There was evidence that he was informed of it before the two latter notes were negotiated, and that he recognized his liability and dealt with the bank on the basis of responsibility. On this there was conflicting testimony. The jury found expressly that he consented and admitted an unqualified liability.

There was testimony authorizing this finding, and unless there were erroneous charges there can be no doubt of his having become bound by the endorsement. His consent was a very clear...